REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of this 3rd day of May , 1999 by and among VoiceStream Wireless
Corporation, a Washington corporation (the "Company"), Xxxxxxx & Xxxxxxxx
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"), Xxxx X. Xxxxxxx ("JWS"), Xxxxxxx X. Xxxxxxxxx ("TEG"), PN Cellular,
Inc., a Washington corporation ("PN"), Xxxxxxx Family Trust, established
November 1, 1990 by JWS and TEG, as settlors f/b/o the settlors' children
("SFT"), Xxxxxxx Communications Corporation, a Washington corporation ("SCC";
JWS, TEG, PN, SFT and SCC are hereinafter referred to collectively as
"Xxxxxxx"), GS Capital Partners, L.P., a Delaware limited partnership ("GSCP"),
The Xxxxxxx Xxxxx Group, L.P., a Delaware limited partnership ("GS"), Xxxxxx
Xxxxxx Xxxx 0000, L.P., a Delaware limited partnership ("BSF"), Xxxxx Xxxxxx
Xxxx 0000, L.P., a Delaware limited partnership ("SSF"; GSCP, GS, BSF and SSF
are hereinafter referred to collectively as "GSC"), and Providence Media
Partners L.P., a Delaware limited partnership ("Providence") (each of H&F,
Xxxxxxx, GSC, and Providence are hereinafter referred to individually as a
"Stockholder" and collectively as the "Stockholders").
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 April 9, 1999, pursuant to which, among other things,
WWC has agreed, upon the terms and conditions set forth therein, to distribute
the shares of the Company's Common Stock, no par value (the "Common Stock"),
owned by it, which shares represent 80.1% of the issued and outstanding shares
of Common Stock, to WWC's stockholders, which include the Stockholders, on the
basis of one share of Common Stock for each one share of WWC's outstanding
common stock (the "Spin-Off");
WHEREAS, certain of the Stockholders and certain other persons were
parties to that certain Stockholders Agreement, dated as of July 29, 1994, as
amended by the First Amendment to Stockholders Agreement, dated as of November
30, 1994 (as amended, the "WWC Stockholders Agreement"), relating to, among
other things, their ownership of shares of common stock of WWC and certain
registration rights with respect thereto;
WHEREAS, the Stockholders and WWC are parties to that certain Voting
Agreement, dated as of May 13, 1996 (the "WWC Voting Agreement"), setting forth,
among other things, certain agreements regarding the termination of the WWC
Stockholders Agreement (except as expressly set forth in Section 10.2 of the WWC
Stockholders Agreement with respect to the survival of certain registration and
other rights) upon the consummation of WWC's Public Offering (as defined in the
WWC Voting Agreement);
WHEREAS, the WWC Stockholders Agreement terminated upon the
consummation of WWC's Public Offering pursuant to the terms thereof and the
terms of the WWC Voting Agreement, except as expressly set forth in Section 10.2
of the WWC Stockholders Agreement with respect to the survival of certain
registration and other rights granted to Stockholders and Minority Stockholders
(as defined in the WWC Stockholders Agreement) to the extent such persons were
Stockholders or Minority Stockholders immediately prior to the consummation of
WWC's Public Offering; and
WHEREAS, simultaneously with the consummation of the Spin-Off (the date
of such consummation being hereinafter referred to as the "Spin-Off Effective
Date"), this Agreement shall be in full force and effect in accordance with its
terms in order, among other things, to clarify that the registration rights
which survive pursuant to Section 10.2 of the WWC Stockholders Agreement shall
extend, as well, and to the same extent, to the shares of Common Stock.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Stockholders and the Company
agree as follows:
1. Effectiveness. This Agreement shall become effective on the Spin-Off
Effective Date. If the Spin-Off Effective Date does not occur on or before
December 31, 1999, this Agreement shall terminate and be of no further force or
effect whatsoever.
2. Registration Rights. (a) The Company and the Stockholders hereby
agree and affirm that the registration rights granted under the WWC Stockholders
Agreement to the Stockholders and the Minority Stockholders (to the extent such
persons were Stockholders and Minority Stockholders immediately prior to the
consummation of WWC's Public Offering) shall extend (to the same extent, on the
same terms and in the same manner that such rights survived the termination of
the WWC Stockholders Agreement with respect to shares of common stock, no par
value, of WWC), to shares of Common Stock issued to each Stockholder and each
such Minority Stockholder as a result of the Spin-Off. It is understood that,
for purposes of this Agreement, each reference set forth in the WWC Stockholders
Agreement to (a) "Common Stock" shall be deemed to mean shares of "Common Stock
of VoiceStream Wireless Corporation, no par value," (b) the "Company" shall be
deemed to mean "VoiceStream Wireless Corporation" and (c) an "Investor" or the
"Investors" shall be deemed to mean a Stockholder or the Stockholders,
respectively.
3. Term; Survival.
(a) This Agreement shall terminate upon the earliest to occur of any
of the following events:
(i) The consent in writing of all of the parties hereto; or
(ii) July 29, 2004; or
(iii) 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
(iv) The beneficial ownership of all of the Common Stock by only
one Stockholder.
(b) Nothing contained in this Section 3 shall affect or impair any
rights or obligations of any party hereto arising prior to the time of the
termination of this Agreement, or which may arise by an event causing the
termination of this Agreement.
4. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective legal
representatives, heirs, successors and assigns.
5. Specific Performance. The Company and each Stockholder, in addition
to being entitled to exercise all of the rights provided herein or in the
Company's Certificate of Incorporation or granted by law, including recovery of
damages, will be entitled to specific performance of its rights under this
Agreement. Each of the Company and the Stockholders agree that monetary damages
would not be adequate compensation for any loss incurred by it by reason of a
breach by any other party hereto of the provisions of this Agreement and hereby
agrees to waive the defense in any action for specific performance that a remedy
at law would be adequate.
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6. Governing Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of Delaware as applied to agreements
entered into and wholly to be performed within the State of Delaware.
7. Headings. The captions 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.
8. Notices. Any notice required or permitted hereunder shall be given
in writing and shall be conclusively deemed effectively received by the
addressee upon personal delivery, on the date of receipt if sent by facsimile or
overnight courier, charges prepaid, or five days after deposit in the United
States mail, by registered or certified mail, postage prepaid, addressed as
follows:
(a) if to the Company: VoiceStream Wireless Corporation
3650 000 Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
with copies to: Xxxx X. Xxxxxx, Esq.
3650 000 Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
and:
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx Xxx
Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
(b) if to HFCP II,
Orchard or International: c/o Hellman & Xxxxxxxx
Xxx Xxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxx, Xx.
General Partner, and
Xxxxxxx Xxxxxx, General Counsel
Facsimile: (000) 000-0000
(c) if to JWS, TEG
PN or SCC: c/o Stanton Communications, Inc.
3650 000 Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
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(d) if to GS, GSCP, GSC,
BSF or SSF: c/o Goldman Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. X'Xxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
(e) if to Providence: c/o Providence Ventures, Inc.
000 Xxxxx Xxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Attention: Xxxxxxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy to: Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Facsimile: (000) 000-0000
or to such other address or facsimile number as any party may have furnished in
writing to the other parties in the manner provided above.
9. 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 Stockholder, 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 dividends,
stock splits, reverse splits, combinations, recapitalizations and the like
occurring after the date hereof.
10. 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 stockholder
agreements containing the provisions of this Agreement.
11. Waivers. 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.
12. Amendments. This Agreement may be amended or modified at any time
by a writing setting forth such amendment or modification, signed by all of the
parties hereto.
13. Multiple Counterparts. This Agreement may be executed in any number
of counterparts, each of which when so executed shall constitute an original
copy hereof, but all of which together shall constitute one agreement.
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14. Severability. In the event that any one or more of the provisions
contained in this Agreement or in any other document, instrument or agreement
referred to herein, shall, for any reason, be held to be invalid, illegal or
unenforceable in any respect, such invalidity, illegality or unenforceability
shall not affect any other provision of this Agreement or any other such
document, instrument or agreement.
15. Entire Agreement. This Agreement and the WWC Stockholders Agreement
contain the entire understanding among the parties hereto concerning the subject
matter hereof and supersede all prior agreements and undertakings, whether
written or oral, with respect to the subject matter hereof.
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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: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chairman
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/ Xxxx X. Xxxxx, Xx.
------------------------------------------
Name: Xxxx X. Xxxxx, Xx.
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
By: /a/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
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: /s/ Xxxx X. Xxxxx, Xx.
-------------------------------------
Name: Xxxx X. Xxxxx, Xx.
Title: Vice President
/s/ Xxxx X. Xxxxxxx
----------------------------------------------------
XXXX X. XXXXXXX
/s/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------------------
XXXXXXX X. XXXXXXXXX
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PN CELLULAR, INC.
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title:
XXXXXXX FAMILY TRUST
By: /s/ Xxxxxx Xxxxxxx /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxxxx Xxxxxxx, Xxxx X. Xxxxxxx , Trustee
XXXXXXX COMMUNICATIONS CORPORATION
By: /s/ Xxxx X. Xxxxxxx
-----------------------------------------------
Name: Xxxx X. Xxxxxxx
Title:
THE XXXXXXX XXXXX GROUP, L.P.
By: /s/ Xxxxxxx X. X'Xxxxx
-----------------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Vice President
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
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
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PROVIDENCE MEDIA PARTNERS L.P.
By: Providence Media GP Limited Partnership
Its: General Partner
By: Providence Ventures, L.P.
Its: General Partner
By: /s/ Xxxxxxxx X. Xxxxxx
-----------------------------------------------
Name: Xxxxxxxx X. Xxxxxx
Title: General Partner
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REGISTRATION RIGHTS AGREEMENT
BY AND AMONG
VOICESTREAM WIRELESS CORPORATION,
XXXXXXX & XXXXXXXX CAPITAL PARTNERS II, L.P.,
H&F ORCHARD PARTNERS, L.P., H&F INTERNATIONAL PARTNERS, L.P.,
XXXX X. XXXXXXX and XXXXXXX X. XXXXXXXXX,
PN CELLULAR, INC., XXXXXXX FAMILY TRUST,
XXXXXXX COMMUNICATIONS CORPORATION,
GS CAPITAL PARTNERS, L.P., THE XXXXXXX SACHS GROUP, L.P.,
BRIDGE STREET FUND 1992, L.P., STONE STREET FUND 1992, L.P.
PROVIDENCE MEDIA PARTNERS L.P.;
DATED: MAY 3, 1999
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TABLE OF CONTENTS
SECTION PAGE
------- ----
1. Effectiveness .......................................................... 3
2. Registration Rights .................................................... 3
3. Term; Survival ......................................................... 4
4. Successors and Assigns ................................................. 5
5. Specific Performance ................................................... 5
6. Governing Law .......................................................... 5
7. Headings ............................................................... 5
8. Notices ................................................................ 5
9. Exchanges, Recapitalizations, Etc. Affecting the
Company's Common Stock ................................................. 7
10. Inspection and Compliance with Law ..................................... 8
11. Waivers ................................................................ 8
12. Amendments ............................................................. 8
13. Multiple Counterparts .................................................. 8
14. Severability ........................................................... 8
15. Entire Agreement ....................................................... 9
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