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EXHIBIT 2.3
AGREEMENT
THIS AGREEMENT (the "Agreement") is dated December , 1999, by and among
East/West Communications, Inc., a Delaware corporation ("East West"), Omnipoint
Corporation, a Delaware corporation ("Omnipoint"), VoiceStream Wireless
Corporation, a Washington corporation ("VoiceStream"), and VoiceStream Wireless
Holding Corporation, a Delaware corporation ("Holdings"). East West, Omnipoint,
VoiceStream, and Holdings shall be referred to herein as the "Parties".
RECITALS
WHEREAS, East West and Omnipoint entered into an Agreement and Plan of
Merger (the "Merger Agreement") dated as of October 22, 1999 pursuant to which,
among other things, East West will merge with and into Omnipoint (such merger,
together with the related transactions contemplated in the Merger Agreement,
being referred to herein as the "Merger");
WHEREAS, East West and Omnipoint desire to amend certain terms of the
Merger Agreement and the Parties desire to set forth certain agreements and
understandings with respect to the Merger Agreement and other matters;
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements set forth herein, the Parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise defined
have the meaning ascribed to such terms in the Merger Agreement.
2. Amendment of the Merger Agreement. Each of Omnipoint and East West agree
that the Merger Agreement shall be deemed to be amended as follows:
(a) Section 6.6(b) shall be deemed to be amended as follows:
(1) the phrase "multiplied by the Omnipoint Common Stock Conversion Ratio" shall
be added immediately after the phrase "Series E Preferred Stock", and (2) the
following sentences shall be deemed added as the last two sentences of Section
6.6(b): "The term 'Omnipoint Common Stock Conversion Ratio' shall mean a
fraction, the numerator of which shall be the number of shares of Company Common
Stock issued and outstanding immediately prior to the Effective Time and the
denominator of which shall be 1,775,000. The Fee Shares are intended to
represent the equivalent of 25,000 shares of Omnipoint Common Stock at the time
of the Closing."
(b) Section 11.1(b)(14) shall be deemed to be amended as
follows: the phrase "and Fee Shares" shall be added immediately after the phrase
"Merger Shares".
(c) The following shall be deemed to be added immediately after
Section 11.1(b)(14):
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"(15) Section 6.6(b) shall be deemed to be amended and restated
in its entirety as follows:
(b) At the Closing, Gabelli shall have the right to receive
the Standard Election Consideration multiplied by 25,000 in satisfaction of the
Company's liability with respect to the Company Fees. The term "Fee Shares"
shall mean the shares of Holding Company Common Stock received by Gabelli
pursuant to this Section 6.6(b)."
3. VoiceStream Consent to Amendment of Merger Agreement. Pursuant to
Section 6.1 of the VoiceStream Merger Agreement, VoiceStream hereby consents to
the amendment of the Merger Agreement as set forth herein.
4. East West Consent to Amendment of Certificate of Designation. Pursuant
to Section 7.2 of the Merger Agreement, East West hereby consents to the
modification of the Certificate of Designation as follows: the phrase
"1,800,000" shall be replaced with "7,000,000" throughout the Certificate of
Designation.
5. Miscellaneous.
(a) Amendments; No Waivers.
(i) Subject to applicable law, any provision of this Agreement may
be amended or waived, but only if such amendment or waiver is in writing and is
signed, in the case of an amendment, by each party to this Agreement or, in the
case of a waiver, by each party against whom the waiver is to be effective.
(ii) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof, or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(b) Successors and Assigns. This Agreement shall be binding upon and
shall inure to the benefit of and be enforceable by the Parties and their
respective successors and assigns, including, without limitation, in the case of
any corporate party hereto any corporate successor by merger or otherwise, and
no Party shall assign its rights under this Agreement without the written
consent of the other Parties.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware, without regard to the
conflicts of law rules of such State.
(d) Jurisdiction. Any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby shall be brought in any
federal court located in the State of
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Delaware or any Delaware state court, and each of the parties hereby consents to
the exclusive jurisdiction of such courts (and of the appropriate appellate
courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by law, any objection that it may now or
hereafter have to the laying of the venue of any such suit, action or proceeding
in any such court or that any such suit, action or proceeding brought in any
such court has been brought in an inconvenient forum. Process in any such suit,
action or proceeding may be served on any party anywhere in the world, whether
within or without the jurisdiction of any such court. Without limiting the
foregoing, each party agrees that service of process on such party as provided
in this section shall be deemed effective service of process on such party.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
(f) Counterparts; Effectiveness. This Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same effect
as if the signatures thereto and hereto were upon the same instrument. This
Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No provision of
this Agreement is intended to confer any rights, benefits, remedies, obligations
or liabilities hereunder upon any Person other than the parties hereto and their
respective successors and assigns.
(g) Entire Agreement. This Agreement, together with the Merger
Agreement, and the Side Agreement constitute the entire agreement between the
parties with respect to the subject matter of this Agreement and supersedes all
prior agreements and understandings, both oral and written, between the parties
with respect to such subject matter.
(h) VoiceStream Action. Notwithstanding anything to the contrary
contained in this Agreement, the Side Agreement, the Merger Agreement or any
other documents, agreements or other instruments entered into in connection
herewith (each, a "Related Agreement" and collectively, the "Related
Agreements"), the Parties hereby agree that (i) no provision contained herein or
in any Related Agreement shall be deemed to limit, restrict or prohibit
Omnipoint, VoiceStream, Holdings or any other party to any Related Agreement
from taking (or failing to take) any action, including but not limited to, any
action permitted by the VoiceStream Merger Agreement as amended from time to
time at the sole discretion of VoiceStream, Holdings and Omnipoint or any action
which in its sole discretion it takes (or fails to take) in order: (a) to
consummate the transactions contemplated by the VoiceStream Merger Agreement, as
amended from time to time at the sole discretion of VoiceStream and Omnipoint;
(b) to fulfill or satisfy the conditions set forth in Article 9 of the
VoiceStream Merger Agreement; or (c) to ensure that the receipt of VoiceStream
Holdings Common Stock by Omnipoint stockholders pursuant to the VoiceStream
Merger will be tax-free to such Omnipoint stockholders (any such action, a
"VoiceStream Action"), and (ii) a VoiceStream Action shall not constitute a
breach of this Agreement or any Related Agreement or of any representation,
warranty, covenant or agreement contained herein or in any Related Agreement if
as a result of such VoiceStream Action there shall occur a breach of any
representation, warranty, covenant or
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agreement contained herein or in any other Related Agreement, subject to Section
12.15(c) of the Merger Agreement.
(i) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(j) Severability. If any term, provision, covenant or restriction of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
(k) Specific Performance. The Parties hereto agree that irreparable
damage would occur if any provision of this Agreement were not performed in
accordance with the terms hereof and that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement or to enforce
specifically the performance of the terms and provisions hereof in any federal
court located in the State of Delaware or any Delaware state court, in addition
to any other remedy to which they are entitled at law or in equity.
(l) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(m) Limitation on Liability. No party hereto shall have any liability
hereunder for any actions or omissions of any other party hereto.
(n) Expenses. Each Party hereto shall bear its own expenses incurred
in connection with this Agreement.
(o) Further Assurances. Each party hereto agrees that such Party shall
execute and deliver such additional instruments and other documents and shall
take such further actions as may be necessary or appropriate to effectuate,
carry out and comply with all of their obligations under this Agreement and to
ensure that Holdings is in "control" of Omnipoint within the meaning of Section
368(c) of the Code as in effect on the date hereof. Without limiting the
generality of the foregoing, none of the parties hereto shall enter into any
agreement or arrangement (or alter, amend or terminate any existing agreement or
arrangement) if such action would impair the ability of any party to effectuate,
carry out or comply with all the terms of this Agreement.
[Signatures on following pages.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
EAST/WEST COMMUNICATIONS, INC.
By:
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Xxxxxxxx X. Xxxx
Chief Executive Officer
OMNIPOINT CORPORATION
By:
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Xxxxxxx X. Xxxxx
Chief Executive Officer
VOICESTREAM WIRELESS CORPORATION
By:
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Name:
Title:
VOICESTREAM WIRELESS HOLDING CORPORATION
By:
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Name:
Title:
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