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EXHIBIT 2.2
AGREEMENT
THIS AGREEMENT (the "Agreement") is dated October 22, 1999, by and
among East/West Communications, Inc., a Delaware corporation ("East West"),
Omnipoint Corporation, a Delaware corporation ("Omnipoint"), VoiceStream
Wireless Corporation, a Washington corporation ("VoiceStream"), and VoiceStream
Wireless Holding Corporation, a Delaware corporation ("Holdings"). East West,
Omnipoint, VoiceStream, and Holdings shall be referred to herein as the
"Parties".
RECITALS
WHEREAS, concurrently herewith, East West and Omnipoint are entering
into an Agreement and Plan of Merger (the "Merger Agreement") pursuant to which,
among other things, East West will merge with and into Omnipoint (such merger,
together with the related transactions contemplated in the Merger Agreement,
being referred to herein as the "Merger");
WHEREAS, as a condition to its entering into the Merger Agreement,
East West has required that the Parties enter into this Agreement;
WHEREAS, it is desired that the Merger qualify as a tax-free
reorganization under Section 368(a) of the Internal Revenue Code of 1986, as
amended (the "Code");
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements set forth herein, the parties hereto agree as follows:
1. Definitions. Capitalized terms used herein and not otherwise
defined have the meaning ascribed to such terms in the Merger Agreement.
2. Consent to the Merger Agreement; Amendment of VoiceStream Merger
Agreement.
(a) Pursuant to Section 6.1 of the VoiceStream Merger Agreement,
VoiceStream hereby consents to the Merger Agreement and the Transactions,
including, without limitation, Article 11 of the Merger Agreement. In addition,
to the extent that the Merger is consummated after the VoiceStream Merger,
Holdings hereby agrees to cause Omnipoint to perform its obligations under the
Merger Agreement and the Transactions, and agrees to perform its obligations
under the Merger Agreement and the Transactions as if it were a party thereto.
(b) Each of Omnipoint, VoiceStream and Holdings hereby agrees to
amend the VoiceStream Merger Agreement (the "Initial Amendment") as soon as
practicable after the date hereof, but in no event later than the Effective
Time, as may be necessary to effectuate the exchange of each Merger Share that
is issued and outstanding immediately after the Effective Time and immediately
prior to the effective time of the VoiceStream Merger for
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the right to receive the Standard Election Consideration (as defined in the
VoiceStream Merger Agreement) multiplied by the Conversion Ratio. The terms and
substance of the Initial Amendment shall be reasonably acceptable to East West.
(c) Following the Initial Amendment, unless the Merger Agreement is
terminated, each of Omnipoint, VoiceStream and Holdings hereby agrees not to
amend the VoiceStream Merger Agreement in a manner that would, upon the
effective time of the VoiceStream Merger, result in the failure of holders of
Series E Preferred Stock to receive the right to receive the Standard Election
Consideration multiplied by the Conversion Ratio, unless as a result of such
amendment the holders of Series E Preferred shall have the right to receive the
same consideration that the holders of Omnipoint Common Stock receive in lieu of
the Standard Election multiplied by the Conversion Ratio, assuming for this
paragraph that prior to such amendment, such holders of Omnipoint Common Stock
elected to receive the Standard Election Consideration and did not modify such
election.
3. Recapitalization of Omnipoint Preferred Stock. Prior to or
simultaneously with the consummation of the VoiceStream Merger, each of
VoiceStream and Omnipoint hereby agree that the Omnipoint Preferred Stock shall
be recapitalized in accordance with the terms set forth below (the
"Recapitalization"):
(a) The Certificate of Designation establishing the designations,
powers, preferences, limitations, restrictions, and relative rights of the 7%
Cumulative Convertible Preferred Stock of Omnipoint (the "Convertible
Preferred") shall be amended to provide that the Convertible Preferred shall be
entitled to 10,445,123 votes which is the number of votes equal in the aggregate
to the number of votes to which the number of whole shares of the common stock
of Omnipoint (the "Common Stock") into which such shares of Convertible
Preferred are convertible would be entitled with respect to any and all matters
presented to the stockholders of Omnipoint for their action or consideration
assuming a conversion price of $31.115 per share, and shall vote with the
holders of shares of the Common Stock and any other class of stock entitled to
vote and not as a separate class.
(b) The Certificate of Designation establishing the designations,
powers, preferences, limitations, restrictions, and relative rights of the
Series A Non-Voting Convertible Preferred Stock of Omnipoint (the "Series A
Convertible Preferred") shall be amended to provide that the Series A
Convertible Preferred shall be entitled to 8,750,000 votes which is the number
of votes equal in the aggregate to seven-tenths (7/10ths) the number of votes to
which the number of whole shares of Common Stock into which such shares of
Series A Convertible Preferred are convertible would be entitled with respect to
any and all matters presented to the stockholders of Omnipoint for their action
or consideration, and shall vote with the holders of shares of Common Stock and
any other class of stock entitled to vote and not as a separate class.
4. Reserved.
5. Representations, Warranties and Covenants of Holdings. Holdings
hereby represents, warrants and covenants to each of the other Parties as
follows:
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(a) Effect of Recapitalization and Conversion of Series A
Convertible Preferred. Assuming the validity of the Recapitalization under
applicable state law, as a result of the Recapitalization and the Transfer and
the Holdings Conversion, if applicable, immediately after the VoiceStream
Merger, Holdings (1) will directly own shares of the capital stock of Omnipoint
representing at least 80% of the total combined voting power of all outstanding
shares of all classes of Omnipoint stock, (the "80% Voting Power") (2) will
"control" Omnipoint within the meaning of Code Section 368(c) as in effect on
the date hereof and (3) has no current plan or intention to take, any action
that would result in Holdings owning less than the 80% Voting Power or take any
other action that would prevent Holdings from controlling Omnipoint subsequent
to the VoiceStream Merger within the meaning of Section 368(c) of the Code as in
effect on the date hereof.
(b) Holdings has no current plan or intention to dispose of any of
the capital stock of Omnipoint, provided, however, that Holdings may transfer
stock of Omnipoint to a single member limited liability company which is treated
as a disregarded entity (under Treas. Reg. Section 301.7701-3) for federal
income tax purposes.
(c) Provided that, at the later of the Effective Time of the Merger
and the effective time of the VoiceStream Merger if it occurs after the Merger,
the Merger qualifies as a reorganization within the meaning of Code Section
368(a) as in effect on the date hereof, Holdings will not take or cause
Omnipoint to take, any action after such later time that would cause the Merger
to fail so to qualify.
6. Representation and Warranties of Omnipoint. Omnipoint hereby
represents and warrants to each of the Parties that: (i) as of the close of
business on October 19, 1999, Omnipoint had outstanding 53,857,909 shares of
Common Stock; (ii) as of the date hereof, Omnipoint has outstanding 12,500
shares of Series A Convertible Preferred, 50 percent of which is owned by
Xxxxxxxxx and 50 percent of which is owned by VoiceStream which is convertible
into 12,500,000 shares of Omnipoint Common Stock and 325,000 shares of
Convertible Preferred Stock, which is convertible into 10,445,123 shares of
Omnipoint Common Stock; and (iii) no action or consent on the part of Xxxxxxxxxx
Telecommunications PCS (USA) Limited or any other party (other than VoiceStream
and Omnipoint) is required to effect the Recapitalization.
7. Representations, Warranties and Covenants of VoiceStream.
VoiceStream hereby represents and warrants to each of the other parties that
VoiceStream holds 6,250 shares of Series A Convertible Preferred and has no
current plan or intention to dispose of any such shares or convert such shares
to Omnipoint Common Stock.
8. Reserved.
9. Effectiveness and Termination. It is a condition precedent to
the effectiveness of this Agreement that the Merger Agreement shall have been
executed and delivered and be in full force and effect. In the event the Merger
Agreement is terminated in accordance with its terms, this Agreement shall
automatically terminate and be of no further
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force or effect. Upon such termination, except for any rights any party may have
in respect of any breach by any other party of its or his obligations hereunder,
none of the parties hereto shall have any further obligation or liability
hereunder.
10. Miscellaneous.
(a) Amendments; No Waivers.
(i) Subject to applicable law, any provision of this Agreement
may be amended or waived, but only if such amendment or waiver is in writing and
is signed, in the case of an amendment, by each party to this Agreement or, in
the case of a waiver, by each party against whom the waiver is to be effective.
(ii) No failure or delay by any party in exercising any right,
power or privilege hereunder shall operate as a waiver thereof, nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof, or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
(b) Successors and Assigns. This Agreement shall be binding upon
and shall inure to the benefit of and be enforceable by the Parties and their
respective successors and assigns, including, without limitation, in the case of
any corporate party hereto any corporate successor by merger or otherwise, and
no Party shall assign its rights under this Agreement without the written
consent of the other Parties.
(c) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Delaware, without regard
to the conflicts of law rules of such State.
(d) Jurisdiction. Any suit, action or proceeding seeking to enforce
any provision of, or based on any matter arising out of or in connection with,
this Agreement or the transactions contemplated hereby shall be brought in any
federal court located in the State of Delaware or any Delaware state court, and
each of the parties hereby consents to the exclusive jurisdiction of such courts
(and of the appropriate appellate courts therefrom) in any such suit, action or
proceeding and irrevocably waives, to the fullest extent permitted by law, any
objection that it may now or hereafter have to the laying of the venue of any
such suit, action or proceeding in any such court or that any such suit, action
or proceeding brought in any such court has been brought in an inconvenient
forum. Process in any such suit, action or proceeding may be served on any party
anywhere in the world, whether within or without the jurisdiction of any such
court. Without limiting the foregoing, each party agrees that service of process
on such party as provided in Section 6.a shall be deemed effective service of
process on such party.
(e) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
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(f) Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party hereto shall have received
counterparts hereof signed by all of the other parties hereto. No provision of
this Agreement is intended to confer any rights, benefits, remedies, obligations
or liabilities hereunder upon any Person other than the parties hereto and their
respective successors and assigns.
(g) Entire Agreement. This Agreement, together with the Merger
Agreement, constitutes the entire agreement between the parties with respect to
the subject matter of this Agreement and supersedes all prior agreements and
understandings, both oral and written, between the parties with respect to such
subject matter.
(h) VoiceStream Action. Notwithstanding anything to the contrary
contained in this Agreement, the Merger Agreement or any other documents,
agreements or other instruments entered into in connection herewith (each, a
"Related Agreement" and collectively, the "Related Agreements"), the Parties
hereby agree that (i) no provision contained herein or in any Related Agreement
shall be deemed to limit, restrict or prohibit Omnipoint, VoiceStream, Holdings
or any other party to any Related Agreement from taking (or failing to take) any
action, including but not limited to, any action permitted by the VoiceStream
Merger Agreement as amended from time to time at the sole discretion of
VoiceStream, Holdings and Omnipoint (except as provided in Section 2(c) hereof)
or any action which in its sole discretion it takes (or fails to take) in order:
(a) to consummate the transactions contemplated by the VoiceStream Merger
Agreement, as amended from time to time at the sole discretion of VoiceStream
and Omnipoint; (b) to fulfill or satisfy the conditions set forth in Article 9
of the VoiceStream Merger Agreement; or (c) to ensure that the receipt of
VoiceStream Holdings Common Stock by Omnipoint stockholders pursuant to the
VoiceStream Merger will be tax-free to such Omnipoint stockholders (any such
action, a "VoiceStream Action"), and (ii) a VoiceStream Action shall not
constitute a breach of this Agreement or any Related Agreement or of any
representation, warranty, covenant or agreement contained herein or in any
Related Agreement if as a result of such VoiceStream Action there shall occur a
breach of any representation, warranty, covenant or agreement contained herein
or in any other Related Agreement, subject to Section 12.15(c) of the Merger
Agreement.
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(i) Captions. The captions herein are included for convenience of
reference only and shall be ignored in the construction or interpretation
hereof.
(j) Severability. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction or other
authority to be invalid, void or unenforceable, the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in full
force and effect and shall in no way be affected, impaired or invalidated so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby be
consummated as originally contemplated to the fullest extent possible.
(k) Specific Performance. The parties hereto agree that irreparable
damage would occur if any provision of this Agreement were not performed in
accordance with the terms hereof and that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement or to enforce
specifically the performance of the terms and provisions hereof in any federal
court located in the State of Delaware or any Delaware state court, in addition
to any other remedy to which they are entitled at law or in equity.
(l) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise or beginning of
the exercise of any thereof by any party shall not preclude the simultaneous or
later exercise of any other such right, power or remedy by such party.
(m) Limitation on Liability. No party hereto shall have any
liability hereunder for any actions or omissions of any other party hereto.
(n) Expenses. Each party hereto shall bear its own expenses
incurred in connection with this Agreement.
(o) Further Assurances. Each party hereto agrees that such party
shall execute and deliver such additional instruments and other documents and
shall take such further actions as may be necessary or appropriate to
effectuate, carry out and comply with all of their obligations under this
Agreement and to ensure that Holdings is in "control" of Omnipoint within the
meaning of Section 368(c) of the Code as in effect on the date hereof. Without
limiting the generality of the foregoing, none of the parties hereto shall enter
into any agreement or arrangement (or alter, amend or terminate any existing
agreement or arrangement) if such action would impair the ability of any party
to effectuate, carry out or comply with all the terms of this Agreement.
[Signatures on following pages.]
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
EAST/WEST COMMUNICATIONS, INC.
By:
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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:
