1
EXHIBIT 10.39
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: _____________, 1999
2
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
- i -
3
REGISTRATION RIGHTS AGREEMENT
This REGISTRATION RIGHTS AGREEMENT (this "Agreement") is made and
entered into as of this ____ day of ____________, 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 ___________, 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
4
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
- 2 -
5
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 that
such rights survived the termination of the WWC Stockholders Agreement, to
shares of Common Stock held by each Stockholder and each such Minority
Stockholder. It being 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", (c) an "Investor" or the "Investors" shall
be deemed to mean a Stockholder or the Stockholders, respectively.
- 3 -
6
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 -
7
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.
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
- 5 -
8
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
Facsimile: (000) 000-0000
with a copy to: Xxxx X. Xxxxxx, Esq.
Xxxxxx Xxxxxx White
& XxXxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000-0000
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: ( )
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
- 6 -
9
(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
000 Xxxxx Xxxxxx Xxxxxx
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,
- 7 -
10
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.
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.
- 8 -
11
15. Entire Agreement. This Agreement contains the entire
understanding among the parties hereto concerning the subject matter hereof and
supersedes all prior agreements and undertakings, whether written or oral, with
respect to the subject matter hereof.
- 9 -
12
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: Chief Executive Officer
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/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
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: /S/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
- 10 -
13
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/ Xxxxxxxx Xxxxx
-----------------------------
Name: Xxxxxxxx Xxxxx
Title: Vice President
/S/ Xxxx X. Xxxxxxx
----------------------------------------
XXXX X. XXXXXXX
/S/ Xxxxxxx X. Xxxxxxxxx
----------------------------------------
XXXXXXX X. XXXXXXXXX
PN CELLULAR, INC.
By: /S/ Xxxx X. Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
XXXXXXX FAMILY TRUST
By: /S/ Xxxx X. Xxxxxxx
-------------------------------------
/S/ Xxxxxx Xxxxxxx
-------------------------------------
Name: Xxxx X. Xxxxxxx, Xxxxxx Xxxxxxx,
Trustees
XXXXXXX COMMUNICATIONS CORPORATION
By: /S/ Xxxx X. Xxxxxxx
-------------------------------------
- 11 -
14
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
THE XXXXXXX XXXXX GROUP, L.P.
By: /S/ Xxxxxxx X. X'Xxxxx
-------------------------------------
Name: Xxxxxxx X. X'Xxxxx
Title: Director
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
- 12 -
15
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 Xxxxxx
--------------------------------
Name: Xxxxxxxx Xxxxxx
Title: Director
- 13 -
