EXHIBIT 99.5
EXECUTION COPY
SUPPLEMENTAL AGREEMENT
By and Among
AERIAL COMMUNICATIONS, INC.
AERIAL OPERATING CO., INC.
and
SONERA LTD.
Dated as of September 8, 1998
TABLE OF CONTENTS
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Page
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ARTICLE I DEFINITIONS
Section 1.01 Defined Terms..........................................2
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ARTICLE II COVENANTS
Section 2.01 Performance of Joint Venture Agreement.................2
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Section 2.02 Restriction on B-PCS Participation.....................3
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Section 2.03 References to Joint Venture Agreement..................3
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ARTICLE III TERMINATION
Section 3.01 Termination............................................3
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ARTICLE IV DISPUTES
Section 4.01 General................................................4
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Section 4.02 Negotiation Procedure..................................4
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Section 4.03 Unresolved Disputes....................................6
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Section 4.04 Jurisdiction; Consent to Service of Process............6
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ARTICLE V REPRESENTATIONS AND WARRANTIES
Section 5.01 Organization and Standing..............................7
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Section 5.02 Authorization..........................................8
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Section 5.03 Litigation.............................................8
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Section 5.04 Absence of Conflict....................................8
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Section 5.05 Absence of Undisclosed Liabilities.....................9
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ARTICLE VI MISCELLANEOUS
Section 6.01 Confidentiality........................................9
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Section 6.02 Notices...............................................10
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Section 6.03 Further Assurances....................................12
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Section 6.04 Amendment.............................................12
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Section 6.05 Waiver of Compliance; Consents........................12
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Section 6.06 Expenses..............................................13
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Section 6.07 Entire Agreement......................................13
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Section 6.08 Counterparts..........................................13
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Section 6.09 Headings and Captions.................................14
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Section 6.10 Severability..........................................14
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Section 6.11 Governing Law.........................................14
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Section 6.12 Compliance with FCC Rules.............................14
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Section 6.13 No Claim of Immunity..................................15
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Section 6.14 Successors and Assigns................................15
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Section 6.15 Equitable Remedies....................................16
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Section 6.16 Remedies Cumulative...................................16
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Section 6.17 Limitation on Damages.................................16
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SCHEDULES
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4.02(c) -- Designated Employees, Representatives and Officers
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SUPPLEMENTAL AGREEMENT
This SUPPLEMENTAL AGREEMENT, dated as of September 8, 1998
(the "Agreement"), is entered into between AERIAL COMMUNICATIONS, INC., a
Delaware corporation ("Aerial"), AERIAL OPERATING CO., INC., a Delaware
corporation and wholly-owned subsidiary of Aerial ("AOC" and, together with
Aerial, the "Aerial Parties"), and SONERA LTD., a limited liability company
organized under the laws of the Republic of Finland and formerly known as Sonera
Corporation ("Sonera").
W I T N E S S E T H:
WHEREAS, Aerial, AOC and Sonera Corporation U.S., a Delaware
corporation and wholly-owned subsidiary of Sonera ("Sonera U.S." and, together
with Sonera, the "Sonera Parties"), have entered into a Joint Venture Agreement,
dated as of the date hereof (the "Joint Venture Agreement"), pursuant to which
Aerial, AOC and Sonera U.S. have formed a joint venture (the "Venture") which,
subject to certain exceptions as set forth therein, will serve during the
Exclusivity Period (as defined therein) as the exclusive vehicle through which
the Aerial Parties and the Sonera Parties will (i) acquire licenses issued by
the Federal Communications Commission to provide B- PCS (as defined therein) and
(ii) build and operate systems with respect to such licenses utilizing GSM
Technology (as defined therein);
WHEREAS, the Joint Venture Agreement sets forth certain
obligations, restrictions and prohibitions applicable to the Sonera Parties and
their affiliates with respect to the Venture; and
WHEREAS, Sonera, as the corporate parent of Sonera U.S., in
consideration of the execution and delivery by the Aerial Parties of the Joint
Venture Agreement, desires to affirm to the Aerial Parties Sonera's acceptance
of the provisions of the Joint Venture Agreement and to set forth certain
covenants in this Agreement with respect thereto;
NOW, THEREFORE, in consideration of the premises and the
mutual covenants, conditions and promises hereinafter set forth, the parties
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.01 Defined Terms. Capitalized terms not otherwise
defined in this Agreement shall have the meanings set forth in the Joint Venture
Agreement.
ARTICLE II
COVENANTS
Section 2.01 Performance of Joint Venture Agreement. Sonera
hereby covenants to the Aerial Parties that Sonera shall not directly or
indirectly (i) take, or cause or permit Sonera U.S. or any Affiliate of either
Sonera Party to take, any action that Sonera U.S. or any Affiliate of either
Sonera Party is prohibited from taking pursuant to the Joint Venture Agreement
or (ii) cause
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or permit Sonera U.S. or any Affiliate of either Sonera Party to fail to perform
any obligation of Sonera U.S. or any Affiliate of either Sonera Party under the
Joint Venture Agreement.
Section 2.02 Restriction on B-PCS Participation. Sonera
expressly agrees to restrict its ability to participate, directly or indirectly,
by itself or through any Affiliate or other Sonera Entity, in B-PCS in the
United States except as expressly permitted by the Joint Venture Agreement or as
otherwise agreed in writing by the Aerial Parties.
Section 2.03 References to Joint Venture Agreement. Sonera
further expressly acknowledges and agrees that all references to the "Joint
Venture Agreement" set forth in the Purchase Agreement, the Investment
Agreement, the Limited Liability Company Agreement, the Management Agreement,
any agreement or instrument referenced in, or attached as an exhibit to, any of
the foregoing agreements and any certificate or instrument delivered in
connection with the closing of the Purchase Agreement on the date hereof shall
be deemed to include this Agreement.
ARTICLE III
TERMINATION
Section 3.01 Termination. This Agreement shall commence upon
the date hereof and shall remain in full force and effect at all times that the
Joint Venture Agreement remains in effect. This Agreement shall terminate only
upon termination of the Joint Venture Agreement.
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ARTICLE IV
DISPUTES
Section 4.01 General. The parties agree to address
disagreements and disputes arising out of or related to this Agreement or the
breach hereof through the procedures set forth in this Article IV.
Section 4.02 Negotiation Procedure. (a) The Aerial Parties, on
the one hand, and Sonera, on the other hand, shall designate one or more
employees or representatives who will be the initial contact for resolving
disputes that may arise under this Agreement that do not involve an amount in
excess of $50,000. The Aerial Parties and Sonera shall first raise such disputes
with a designated employee or representative of the other party. The designated
employees or representatives shall work together to resolve the relevant issue
in a manner that meets the interests of both the Aerial Parties and Sonera, or
until the issue is referred to designated officers of the parties as set forth
in Section 4.02(b). Any disputes that involve an amount in excess of $50,000
shall be referred to the designated officers of the parties as set forth in
Section 4.02(b).
(b) The Aerial Parties and Sonera shall also designate one or
more officers who will review (i) disputes that involve an amount in excess of
$50,000 or (ii) disputes that the designated employees or representatives are
unable to resolve pursuant to Section 4.02(a). Any matter not resolved by such
designated employees within 30 days after the date on which a party hereto first
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notifies a designated employee of the other party shall be referred to such
designated officers for resolution. The designated officers shall work together
to resolve the disputes so referred to them in a manner that meets the interests
of both the Aerial Parties and Sonera, either until such agreement is reached,
or until an impasse is declared by either the Aerial Parties or Sonera;
provided, however, that an impasse shall not be declared by either the Aerial
Parties or Sonera prior to the fifteenth day after such dispute has first been
referred to such designated officers. Notice of declaration of any impasse shall
be given pursuant to Section 6.02 hereof.
(c) The employees or representatives and officers initially
designated by the Aerial Parties and Sonera for purposes of this Section 4.02
are set forth in Schedule 4.02(c) to this Agreement. Parties may change such
designation by giving notice of such change pursuant to Section 6.02 hereof.
(d) Any resolution of a dispute by the designated employees or
representatives pursuant to Section 4.02(a) hereof or by the designated officers
pursuant to Section 4.02(b) hereof shall be in writing signed by such persons on
behalf of the parties. Notwithstanding any provision of this Article IX, no
resolution of any dispute by any designated employee, representative or officer
shall constitute an amendment of this Agreement without the approval of the
respective boards of directors of each party hereto.
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Section 4.03 Unresolved Disputes. The parties shall be
entitled to exercise or resort to any and all rights and remedies provided in
this Agreement or at law or in equity with respect to any controversy or claim
not resolved through the procedures set forth above.
Section 4.04 Jurisdiction; Consent to Service of Process. (a)
Subject to and in furtherance of the provisions of Section 4.03, each party
hereby irrevocably consents and submits to the jurisdiction of the United States
District Court for the District of Delaware and any court of the State of
Delaware in any action, suit or proceeding arising out of, resulting from or
relating to this Agreement, and agrees that any such action, suit or proceeding
shall be brought only in such courts (and waives any objection based on forum
non conveniens or any other objection to venue therein); provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
Section 4.04 and shall not be deemed to be a general submission to the
jurisdiction of said courts or the State of Delaware other than for such
purpose.
(b) Sonera hereby irrevocably appoints The Corporation Trust
Company, at its office at ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇ of America, its lawful agent and attorney to accept and acknowledge
service of any and all process against it in any action, suit or proceeding
arising out of, resulting from or relating to this Agreement, and upon whom such
process may be served, with the same effect as if it were a resident of the
State of Delaware, and had been lawfully served with such process in such
jurisdiction, and waives all claim of error by reason of such service, provided
that in the case of any service upon such agent and attorney, the Aerial Parties
shall also deliver a copy thereof to Sonera at the address and in the manner
specified in Section 6.02.
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In the event that such agent and attorney resigns or otherwise becomes incapable
of acting as such, Sonera will appoint a successor agent and attorney in
Wilmington, Delaware, reasonably satisfactory to the Aerial Parties, with like
powers or, if Sonera fails to make such appointment, Sonera hereby authorizes
either Aerial Party to appoint such agent. Sonera shall pay the annual fee due
to The Corporation Trust Company or such successor agent for acting in such
capacity; provided, however, that if Sonera fails to make such payment, then the
Aerial Parties shall be permitted to do so.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each party hereby represents and warrants to the other party
as follows (each party making said representations and warranties as to itself
and as to and on behalf of each of its Affiliates which is a party to any or all
of the agreements and instruments which are being executed and delivered in
connection herewith):
Section 5.01 Organization and Standing. It is a corporation,
in the case of each Aerial Party, or a limited liability company, in the case of
Sonera, duly organized, validly existing and in good standing under the laws of
the jurisdiction of its organization, has all requisite authority and power to
carry on its business as now being conducted by it, and is in good standing in
each jurisdiction in which the nature of the business conducted by it requires
it to be qualified therein to do business.
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Section 5.02 Authorization. It has taken all action necessary
for the authorization, execution, delivery and performance by it of this
Agreement and the other agreements being delivered simultaneously herewith to
which it is a party, and when this Agreement and other agreements are executed
and delivered by it, they will constitute its valid and binding obligations in
accordance with their respective terms. It has all necessary corporate and other
power with respect to the foregoing.
Section 5.03 Litigation. It is not a party to any pending or,
to the best of its knowledge threatened, litigation or other proceeding which,
if adversely determined, would have a material adverse effect upon the Venture
or any LLC formed pursuant to the Joint Venture Agreement or such LLC's tangible
or intangible assets or operations.
Section 5.04 Absence of Conflict. Neither the execution,
delivery or performance by it of this Agreement or of any other agreements which
are being executed and delivered simultaneously herewith to which it is a party,
nor the consummation of the transactions herein or therein contemplated, nor the
fulfillment of or compliance with the terms and conditions hereof or thereof,
will (nor with the giving of notice or lapse of time or both would) conflict
with its charter, bylaws or other instrument pursuant to which it is organized,
or result in a breach of or constitute a default under or conflict with any
material contract, agreement or instrument to which it is a party or by which it
or any of its properties are bound, or any law, rule, or regulation applicable
to it or any of its properties. Any third party, governmental or administrative
consents or approvals which are required in connection with the foregoing have
been obtained and are in full force and effect.
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Section 5.05 Absence of Undisclosed Liabilities. It has no
material debts, liabilities, contracts or other obligations which could
reasonably be expected to affect the Venture or any LLC formed pursuant to the
Joint Venture Agreement in a materially adverse manner.
ARTICLE VI
MISCELLANEOUS
Section 6.01 Confidentiality. (a) In addition to any
obligations of confidentiality pursuant to other agreements already existing
between the parties hereto (which this Section 6.01 is not intended to supersede
with respect to information disclosed prior to the execution of this Agreement),
each party hereto will, and will cause its Affiliates to, hold in confidence and
not disclose to any of its own personnel or personnel of its Affiliates not
having a need to know or to any third party without the prior written consent of
the other parties hereto: (i) any information received by it from the other
parties in connection with the transactions contemplated hereby or (ii) any
specific terms of this Agreement or any agreement being delivered simultaneously
herewith.
(b) The foregoing obligation of confidence shall extend for
the term of this Agreement and any extensions hereof and for a period of 5 years
thereafter; provided, however, that no party shall be obligated to maintain in
confidence information:
(i) which is or becomes part of the public domain other than
through breach of this Agreement or through the fault of the receiving
party;
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(ii) which is or becomes available to the receiving party from
a source other than the disclosing party, which source has no
obligation to the disclosing party in respect thereof;
(iii) which is made available by the disclosing party in
written form to a third party which is not an Affiliate of the
disclosing party on an unrestricted basis;
(iv) which is required to be disclosed by law; or
(v) disclosure of which is mutually agreed to by the parties.
(c) If any party hereto discloses such information to a third
party, such disclosing party shall ensure that suitable undertakings of secrecy
are imposed upon such third party which are no less stringent than those of this
Section 6.01.
Section 6.02 Notices. All notices, claims and other
communications hereunder shall be in writing and shall be made by hand delivery,
facsimile, or overnight air courier guaranteeing next day delivery, as follows:
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(a) If to the Aerial Parties, at:
Aerial Communications, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy (which shall not constitute notice) to:
Telephone and Data Systems, Inc.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
and a copy (which shall not constitute notice) to:
Sidley & Austin
One First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ - ▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to Sonera, at:
Sonera Ltd.
▇.▇. ▇▇▇ ▇▇▇
▇▇▇-▇▇▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Telephone: ▇▇▇-▇▇-▇-▇▇▇▇-▇▇▇▇
Facsimile: 011-35-8-2040-3414
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with a copy (which shall not constitute notice) to:
▇▇▇▇▇▇ ▇▇▇▇▇, L.L.P.
▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇.▇.
▇▇▇▇▇▇▇▇▇▇, ▇.▇. ▇▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
or at such other address as any party may from time to time furnish to the other
parties by a notice given in accordance with the provisions of this Section
6.02. All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; when receipt
confirmed, if sent by facsimile; and the next Business Day after timely delivery
to the courier, if sent by an overnight air courier service guaranteeing next
day delivery.
Section 6.03 Further Assurances. Each of the parties hereto
agrees to take all reasonably necessary steps to do all such further acts and
things as may be necessary to carry out the purposes and intentions of this
Agreement and to ensure that the Venture can carry on its business through LLCs
consistent with and as contemplated by the Joint Venture Agreement.
Section 6.04 Amendment. This Agreement may be amended,
modified and supplemented only by written agreement of Sonera and the Aerial
Parties.
Section 6.05 Waiver of Compliance; Consents. Any failure by
the Aerial Parties or Sonera to comply with any obligation, covenant, agreement
or condition herein may be waived in writing by the other, but such waiver or
failure to insist upon strict compliance with such obligation,
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covenant, agreement or condition shall not operate as a waiver of, or estoppel
with respect to, any subsequent or other failure. Whenever this Agreement
requires or permits waivers or consents by or on behalf of any party, such
waiver or consent shall be given in writing.
Section 6.06 Expenses. Each party hereto shall pay its own
legal, accounting and other expenses incident to this Agreement and the
consummation of the transactions contemplated thereby.
Section 6.07 Entire Agreement. This Agreement, the Joint
Venture Agreement, the Purchase Agreement, the Investment Agreement and the
documents referred to herein and therein embody the whole agreement and
understanding of the parties with respect to the relations contemplated hereby.
There are no restrictions, promises, representations, warranties, covenants or
undertakings with respect thereto, other than those set forth or referred to in
such agreements. Such agreements supersede all prior agreements and
understandings between the parties with respect to the subject matter hereof. No
rights in favor of third parties are hereby created.
Section 6.08 Counterparts. 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.
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Section 6.09 Headings and Captions. The headings and captions
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement.
Section 6.10 Severability. In the event any provision of this
Agreement is found to be invalid or unenforceable in whole or in part, the
remaining provisions of this Agreement nevertheless shall be binding and the
invalid or unenforceable provision shall be replaced by a valid and enforceable
provision which comes closest to the intent or economic effect of the provision
to be replaced.
Section 6.11 Governing Law. This Agreement shall be construed
in accordance with and subject to the local, internal laws of the State of
Delaware.
Section 6.12 Compliance with FCC Rules. Notwithstanding any
other provision in this Agreement, the parties hereto shall at all times comply
with, and all provisions of this Agreement shall be subject to, all applicable
rules and regulations of the FCC, including but not limited to approval by the
FCC prior to the acquisition of any B-PCS License and to the restrictions on
spectrum aggregation set forth in Section 20.6 of the FCC rules, and the parties
hereto shall cooperate in the preparation and filing of all necessary
applications with the FCC. To the extent that (i) any party hereto or an
Affiliate thereof, jointly pursuant to the Joint Venture Agreement or
individually, desires to enter into a binding agreement to acquire a license
issued by the FCC to provide Wireless Services or to manage or operate a system
providing Wireless Services and (ii)
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such acquisition, operation or management would be prevented due to the
restrictions on spectrum aggregation set forth in Section 20.6 of the FCC rules,
then the parties shall, for a period of not less than 15 business days,
cooperate in good faith to consider, but (except as set forth in Section 8.01 of
the Joint Venture Agreement) shall not be obligated to take, such action as may
be necessary to render the restrictions of Section 20.6 inapplicable to such
acquisition, operation or management.
Section 6.13 No Claim of Immunity. Sonera agrees that, to the
extent that it or any of its property, its Affiliates, or property of its
Affiliates is or becomes entitled at any time to any immunity, on the grounds of
sovereignty or otherwise, based upon its status as an agency or instrumentality
of government, from any arbitration, legal action, suit or proceeding or from
setoff or counterclaim relating to this Agreement from the jurisdiction of any
arbitrator or competent court, from service of process, from attachment prior to
judgment, from attachment in aid of execution of a judgment, from execution
pursuant to a judgment or arbitration award, or from any other legal process in
any jurisdiction, it, for itself, its Affiliates, its property and that of its
Affiliates, expressly, irrevocably and unconditionally agrees not to plead or
claim, any such immunity with respect to such matters arising with respect to
this Agreement or the subject matter hereof (including any obligation for the
payment of money).
Section 6.14 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and to their
respective permitted successors and assigns; provided, however, that neither the
rights nor the obligations of any party may be assigned or delegated without the
prior written consent of the other parties.
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Section 6.15 Equitable Remedies. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with the specific terms hereof or the
provisions hereof were otherwise breached. It is accordingly agreed that the
parties shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions hereof in
any court of the United States or any state having jurisdiction, this being in
addition to any other remedy to which they are entitled at law or in equity.
Each party agrees that it will not assert, as a defense against a claim for
specific performance, that the party seeking specific performance has an
adequate remedy at law.
Section 6.16 Remedies Cumulative. Except as otherwise provided
herein, each and all of the rights and remedies in this Agreement provided, and
each and all of the rights and remedies allowed at law and in equity in like
case, shall be cumulative, and the exercise of one right or remedy shall not be
exclusive of the right to exercise or resort to any and all other rights or
remedies provided in this Agreement or at law or in equity. Sonera expressly
agrees that neither Aerial Party shall be required to exercise its rights or
remedies under the Joint Venture Agreement prior to exercise by such Aerial
Party of any right or remedy provided in this Agreement.
Section 6.17 Limitation on Damages. Neither the Aerial Parties
nor Sonera shall be liable to the other for damages hereunder except for
reasonable direct economic and pecuniary costs (including reasonable attorneys'
fees) and damages (which shall not include consequential,
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exemplary, expectancy, indirect, punitive or special damages) arising out of or
in connection with any act or failure to act under, or breach of the terms of,
this Agreement.
* * * * *
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
AERIAL COMMUNICATIONS, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
AERIAL OPERATING CO., INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President and Chief Executive Officer
SONERA LTD.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇
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Title: President and CEO
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SIGNATURE PAGE TO SUPPLEMENTAL AGREEMENT,
DATED AS OF SEPTEMBER 8, 1998,
AMONG AERIAL COMMUNICATIONS, INC., AERIAL OPERATING
CO., INC. AND SONERA LTD.
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