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EXHIBIT 10.41
FIRST AMENDMENT TO SHAREHOLDERS AGREEMENT
FIRST AMENDMENT TO SHAREHOLDERS AGREEMENT, dated as of _________, 1999
(the "Agreement"), by and among VoiceStream Wireless Corporation, a Washington
corporation (the "Company"), Western Wireless Corporation, a Washington
corporation ("WWC"), Xxxxxxxxx Telecommunications Holdings (USA) Limited, a
British Virgin Islands corporation ("Xxxxxxxxx Holdings"), and Xxxxxxxxx
Telecommunications PCS (USA) Limited, a British Virgin Islands corporation
("Xxxxxxxxx PCS"; each of Xxxxxxxxx Holdings, Xxxxxxxxx PCS, WWC and the Company
is sometimes referred to herein as a "Party" and collectively as the "Parties").
WHEREAS, the Company and WWC are parties to that certain Agreement and
Plan of Distribution, dated as of ___________, 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 shareholders on the basis of one
share of Common Stock for each one share of WWC's outstanding common stock (the
"Spin-Off");
WHEREAS, prior to the Spin-Off, Xxxxxxxxx PCS is the owner of 19.9% of
the issued and outstanding shares of Common Stock, and WWC, the Company and
Xxxxxxxxx PCS are Parties to that certain Shareholders Agreement, dated February
17, 1998 (the "Shareholders Agreement"), pursuant to which, among other things,
certain agreements concerning the management and control of the Company,
preemptive rights with respect to the Company's equity securities, registration
rights with respect to the Common Stock, and certain other matters were set
forth;
WHEREAS, prior to the Spin-Off, Xxxxxxxxx Holdings is the owner of
3,888,888 shares of the issued and outstanding Class A common stock of WWC, and
as a result of the Spin-Off, will receive a like number of shares of Common
Stock;
WHEREAS, as of the effective date of the Spin-Off (the "Spin-Off
Effective Date"), the Company and certain stockholders of the Company, including
Xxxxxxxxx Holdings and Xxxxxxxxx PCS, intend to enter into a Voting Agreement
(the "Voting Agreement"), setting forth, among other things, certain agreements
concerning the management of the Company; and
WHEREAS, simultaneously with the execution of the Voting Agreement, the
Parties desire to terminate the Shareholders Agreement, except for certain
provisions therein granting Xxxxxxxxx PCS preemptive rights on equity securities
issued by the Company, rights to designate directors and registration rights on
the Common Stock owned by Xxxxxxxxx PCS, all on the terms set forth herein.
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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 Parties hereby agree as
follows:
1. Certain Definitions. For purposes of this Agreement, capitalized
terms used herein and not otherwise defined shall have the meanings ascribed to
such terms in the Shareholders Agreement as if such definitions were set forth
herein, unless the context otherwise requires.
2. Termination of Certain Provisions of the Shareholders Agreement.
(a) Effective as of the Spin-Off Effective Date, the Shareholders Agreement is
amended to delete WWC as a party thereto and from and after the Spin-Off
Effective Date, (i) WWC shall not have no further rights, obligations or
liabilities of any nature whatsoever under the Shareholders Agreement; and (ii)
neither the Company nor Xxxxxxxxx PCS shall have any further rights against, or
obligations or liabilities of any nature whatsoever to, WWC under the
Shareholders Agreement.
(b) Except as set forth in Section 2(c) below, the Parties
hereby agree that, as of the Spin-Off Effective Date, all rights and obligations
of the Parties under the Shareholders Agreement shall terminate.
(c) Notwithstanding the termination of the rights and
obligations of the Parties pursuant to Section 2(b) hereof, the Parties hereby
agree that (i) Xxxxxxxxx PCS's preemptive right to purchase equity securities
issued by the Company under Section 9 of the Shareholders Agreement shall
survive the Spin-Off Effective Date until the termination in its entirety of
Xxxxxxxxx PCS's right to designate directors to the Board of Directors of the
Company under Section 3 of the Voting Agreement, or, if earlier, the completion
of an Investor 50% Transfer; (ii) Xxxxxxxxx PCS's demand and piggyback
registration rights under Section 11 of the Shareholders Agreement shall survive
the Spin-Off Effective Date until terminated in accordance with Section 11 of
the Shareholders Agreement; (iii) Xxxxxxxxx Holdings is hereby granted, with
respect to the Common Stock which Xxxxxxxxx Holdings will receive as a result of
the Spin-Off with respect to its WWC Class A common stock, the same demand and
piggyback registration rights as Xxxxxxxxx PCS under Section 11 of the
Shareholders Agreement, which rights shall survive the Spin-Off Effective Date
until terminated in accordance with Section 11 of the Shareholders Agreement;
and (iv) Xxxxxxxxx PCS's right to transfer its right to designate directors and
demand and piggyback registration rights to an Investor 50% Transferee shall
continue until terminated in accordance with the Shareholders Agreement.
3. Representations and Warranties.
Each Party hereby represents and warrants, as to itself, to each other
Party as follows:
(a) It is a corporation duly organized, validly existing and
in good standing under the laws of its jurisdiction of incorporation with full
power and authority to execute, deliver and perform its obligations under this
Agreement;
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(b) The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on its part and this Agreement
constitutes its legal, valid and binding obligation enforceable against it in
accordance with its terms; and
(c) Neither the execution, delivery or performance of this
Agreement by it, nor the consummation of the transactions contemplated hereby
will, with or without the giving of notice of passage of time, or both conflict
with, result in a default or loss of rights (or give rise to any right of
termination, cancellation or acceleration) under, (i) any provision of its (or
any of its Subsidiaries') certificate of incorporation or by-laws, (ii) any
material note, bond, indenture, mortgage, deed of trust, contract, agreement,
lease or other instrument or obligation to which it, or any of its Subsidiaries,
is a party or by which it, or any of its Subsidiaries, or its, or any of its
Subsidiaries', properties may be bound or affected, or (iii) any law, order,
judgment, ordinance, rule, regulation or decree to which it, or any of its
Subsidiaries, is a party or by which it, or any of its Subsidiaries, or any of
its, or any of its Subsidiaries', properties are bound or affected.
4. 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, (a) this Agreement shall terminate and be of no
further force and effect whatsoever, and (b) the Shareholders Agreement shall
remain in full force and effect without any amendment thereto whatsoever
resulting from this Agreement and shall hereby be ratified, adopted and
confirmed in all respects.
5. Waiver; Amendments. Except as expressly provided otherwise
herein, neither this Agreement nor any provision hereof may be changed, waived,
discharged or terminated orally, but only by an instrument in writing signed by
the Parties.
6. Recapitalization, Exchanges, Etc. The provisions of this
Agreement shall apply to the full extent set forth herein with respect to shares
or other securities of the Company that may be issued to Xxxxxxxxx PCS or
Xxxxxxxxx Holdings in respect of, in exchange for, or in substitution of the
Common Stock.
7. Notices. All notices, requests, demands and other communications
hereunder shall be in writing and, except to the extent otherwise expressly
provided in this Agreement, shall be deemed to have been duly given if delivered
by same day or next day courier (guaranteed delivery) or mailed, registered
mail, return receipt requested, or transmitted by telegram, telex or facsimile
at such Party's address appearing below, or such other address as such Party may
have furnished to the other Parties, in writing, in accordance with this Section
7. If a notice hereunder is transmitted by confirmed fax so as to arrive during
normal business hours during a Business Day at the place of receipt, then such
notice shall be deemed to have been given on such Business Day at the place of
receipt or, if so transmitted to arrive after normal business hours during a
Business Day at the place of receipt, then such notice shall be deemed to have
been given on the following Business Day at the place of receipt. If such notice
is sent by next-day courier it shall
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be deemed to have been given on the third Business Day at the place of receipt
following sending and, if by registered air mail, on the tenth Business Day at
the place of receipt following sending, provided, that the date of sending shall
be deemed to be the date at the place of receipt at the time such notice is
posted.
(a) if to Xxxxxxxxx PCS:
Xxxxxxxxx Telecommunications PCS (USA) Limited
c/o Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
Tel: (000) 000-0000
Fax: (000) 000-0000
and
Xxxxxxxxx Telecommunications PCS (USA) Limited
22nd Floor, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
Xxxxxxxxx: Xxxxx Xxxx
Tel: (000) 0000-0000
Fax: (000) 0000-0000
With a copy (which shall not constitute notice) to:
Xxxxx Xxxxxxxxxx LLP
Suite 3907, Asia Pacific Finance Xxxxx
Xxxxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Attention: Xxxx X. Xxxxxx
Tel: (000) 0000-0000
Fax: (000) 0000-0000
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(b) if to Xxxxxxxxx Holdings:
22nd Floor, Xxxxxxxxx Xxxxx
00 Xxxxxxxx Xxxx
Xxxx Xxxx
Xxxxxxxxx: Xxxxx Xxxx
Tel: (000) 0000-0000
Fax: (000) 0000-0000
With a copy (which shall not constitute notice) to:
Xxxxx Xxxxxxxxxx LLP
Suite 3907, Asia Pacific Finance Xxxxx
Xxxxxxxx Xxxxx
0 Xxxxxx Xxxx
Xxxxxxx, Xxxx Xxxx
Attention: Xxxx X. Xxxxxx
Tel: (000) 0000-0000
Fax: (000) 0000-0000
(c) if to WWC:
3650 000 Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
(d) if to the Company:
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3650 000 Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxxx X. Xxxxxxx, Esq.
Tel: (000) 000-0000
Fax: (000) 000-0000
For purposes of this Section 7, a "Business Day" shall mean any day
other than a Saturday, Sunday or legal holiday in New York, New York, Seattle or
Hong Kong or any other day on which commercial banks in those locations are
authorized by law or governmental decree to close.
8. Successors and Assigns. Except as otherwise provided herein,
this Agreement shall inure to the benefit of, and be binding upon, the
successors and assigns of each of the Parties.
9. Counterparts. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original and all of which
together shall be considered one and the same agreement.
10. Entire Agreement. This Agreement constitutes the entire
understanding of the Parties with respect to the subject matter hereof and
supersedes all prior understandings among the Parties with respect to such
subject matter.
11. Applicable Law. The validity of this Agreement, its
construction, interpretation and enforcement, and the rights of the Parties
hereunder, shall be determined under, governed by and construed in accordance
with the internal laws of the State of New York applicable to contracts formed
in such State. Each Party agrees that, subject to Section 13 hereof, any suit,
action or other proceeding arising out of this Agreement shall be brought and
litigated in the courts of the State of New York or the United States District
Court for the Southern District of New York and each Party hereby irrevocably
consents to personal jurisdiction and venue in any such court and hereby waives
any claim it may have that such court is an inconvenient forum for the purposes
of any such suit, action or other proceeding.
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12. Section Headings. The headings of the sections and subsections
of this Agreement are inserted for convenience only and shall not be deemed to
constitute a part thereof.
13. Arbitration. Any and all disputes, controversies or claims (each
a "Dispute") between the Parties relating to the interpretation or enforcement
or performance of this Agreement shall be resolved by binding arbitration by the
Arbitration Institute of the Stockholm Chamber of Commerce in accordance with
its rules, subject to the following provisions:
(i) There shall be three arbitrators (the "Arbitrators").
Each Party shall appoint one arbitrator within 30 days after giving or receiving
notice of the submission of a Dispute to arbitration. The two arbitrators
appointed by the Parties shall appoint the third arbitrator. If a Party does not
appoint an arbitrator within such designated period, or if the two appointed
arbitrators fail to appoint a third arbitrator within 30 days after their
appointment, the relevant appointment shall be made by the Arbitration Institute
of the Stockholm Chamber of Commerce.
(ii) The expenses of the arbitration shall be borne equally
by WWC, on the one hand, and VoiceStream, on the other hand, and each Party
shall bear its own legal fees and expenses; provided, however, that the
Arbitrators shall have discretion to require that one Party pay all or a portion
of the expenses of arbitration or the other Party's legal fees and expenses in
connection with any particular arbitration.
(iii) The Arbitrators shall determine whether and to what
extent any Party shall be entitled to damages or equitable relief. No Party
shall be entitled to punitive damages or consequential damages or shall be
required to post a bond in connection with equitable relief.
(iv) The Arbitrators shall not have the power to add to nor
modify any of the terms or conditions of this Agreement. The Arbitrators'
decision shall not go beyond what is necessary for the interpretation and
application of the provisions of this Agreement in respect of the issue before
the Arbitrators. The Arbitrators' decision and award or permitted remedy, if
any, shall be based upon the issue as drafted and submitted by the respective
Parties and the relevant and competent evidence adduced at the hearing(s).
(v) The Arbitrators shall have the authority to award any
remedy or relief provided for in this Agreement, in addition to any other remedy
or relief (including provisional remedies and relief) that a court of competent
jurisdiction could order or grant (but subject to the remedial limitations
elsewhere set forth in this Agreement, including, but without limitation, the
aforesaid prohibition against punitive and consequential damages). The
Arbitrators written decision shall be rendered within sixty (60) days of the
hearing. The decision reached by the Arbitrators shall be final and binding upon
the Parties as to the matter in dispute. To the extent that the relief or remedy
granted by the Arbitrators is relief or remedy on which a court could enter
judgement, a judgement upon the award rendered by the Arbitrators may be entered
in any court having jurisdiction thereof (unless in the case of an award of
damages, the full amount of the award is paid within ten (10) days of its
determination by the Arbitrators). Otherwise, the award
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shall be binding on the Parties in connection with their continuing performance
of this Agreement and in any subsequent arbitral or judicial proceeding between
the Parties.
(vi) The arbitration shall take place in Stockholm, Sweden,
unless otherwise agreed by the Parties, and shall be conducted in the English
language.
(vii) The arbitration proceeding and all filing, testimony,
documents and information relating to or presented during the arbitration
proceeding shall be disclosed exclusively for the purpose of facilitating the
arbitration process and for no other purpose.
(viii) The Parties shall continue performing their respective
obligations under this Agreement notwithstanding the existence of a Dispute
while the Dispute is being resolved unless and until such obligations are
terminated, expire or are suspended in accordance with the provisions hereof.
(ix) The Arbitrators may, in their sole discretion, order a
pre-hearing exchange of information including production of documents, exchange
of summaries of testimony or exchange of statements of position, and shall
schedule promptly all discovery and other procedural steps and otherwise assume
case management initiative and control to effect an efficient and expeditious
resolution of the Dispute. At any oral hearing of evidence in connection with an
arbitration proceeding, each Party and its counsel shall have the right to
examine its witnesses and to cross-examine the witnesses of the other Party. No
testimony of any witness shall be presented in written form unless the opposing
Party or Parties shall have the opportunity to cross-examine such witness,
except as the Parties otherwise agree in writing.
(x) Notwithstanding the dispute resolution procedures
contained in this Section 13, either Party may apply to any court having
jurisdiction (a) to enforce this Agreement to arbitrate, (b) to seek provisional
injunctive relief so as to maintain the status quo until the arbitration award
is rendered or the Dispute is otherwise resolved, or (c) to challenge or vacate
any final judgment, award or decision of the Arbitrators that does not comport
with the express provisions of this Section 13.
14. Failure to Pursue Remedies. The failure of any Party to seek
redress for violation of any provision of this Agreement shall not prevent a
subsequent act, which would have originally constituted a violation, from having
the effect of an original violation.
15. Cumulative Remedies. The rights and remedies provided by this
Agreement are cumulative and the use of any one right or remedy by any Party
shall not preclude or waive its right to use any or all other remedies except as
otherwise expressly provided in this Agreement. Such rights and remedies are
given in addition to any other rights the Parties may have by law, statute,
ordinance or otherwise.
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16. Severability. The invalidity or unenforceability of any
particular provision of this Agreement shall not affect the other provisions
hereof, and this Agreement shall be construed in all respects as if such invalid
or unenforceable provisions were omitted.
17. HTL. In the event Xxxxxxxxx PCS shall exercise its preemptive
rights under Section 9 of the Shareholders Agreement, Xxxxxxxxx
Telecommunications Limited, a corporation organized under the laws of Hong Kong,
agrees to cause Xxxxxxxxx PCS to perform its obligations under such Section 9 in
accordance with its respective terms in connection with any such purchases
(including causing or enabling Xxxxxxxxx PCS to make payment).
18. Further Assurances. Each party hereto at the request of the
other party shall, from time to time, execute and deliver such other
assignments, transfers, conveyances and other instruments and documents and do
and perform such other acts and things as may be reasonably necessary or
desirable for effecting complete consummation of this Agreement and the
transactions herein contemplated.
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IN WITNESS WHEREOF, the Parties hereto have executed this Agreement as
of the date first above written.
WESTERN WIRELESS CORPORATION
/s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Senior Vice President
XXXXXXXXX TELECOMMUNICATIONS PCS
(USA) LIMITED
/s/ Xxxx Xxxx
----------------------------------------
Name: Xxxx Xxxx
Title: Director
XXXXXXXXX TELECOMMUNICATIONS
HOLDINGS (USA) LIMITED
/s/ Khoo Chek Ngee
----------------------------------------
Name: Khoo Chek Ngee
Title: Director
VOICESTREAM WIRELESS CORPORATION
/s/ Xxxx X. Xxxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officers
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The undersigned joins as a Party to this Agreement solely for the
purpose of acknowledging and becoming bound by the provisions of Section 17
hereof.
XXXXXXXXX TELECOMMUNICATIONS
LIMITED
/s/ Khoo Chek Ngee
----------------------------------------
Name: Khoo Chek Ngee
Title: Director
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