Exhibit 99.1
EXECUTION COPY
STOCK SUBSCRIPTION AGREEMENT
BY AND AMONG
VOICESTREAM WIRELESS HOLDING CORPORATION,
and
SONERA LTD.
DATED: September 17, 1999
TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS..........................................................1
ARTICLE 2 PURCHASE OF STOCK; CLOSING...........................................3
2.01 Purchase and Exchange of Stock...................................3
2.02 Closing..........................................................3
(a) Closing Date.................................................3
(b) Location.....................................................3
ARTICLE 3 COVENANTS AND AGREEMENTS.............................................4
3.01 Covenant of the Company..........................................4
3.02 Covenant of the Investor.........................................4
3.03 HSR Act..........................................................4
3.04 FCC Consent......................................................4
3.05 Cooperation......................................................4
3.06 Certificate......................................................4
3.07 Merger Consolidation.............................................5
3.08 Settlement Agreement.............................................5
ARTICLE 4 REPRESENTATIONS AND WARRANTIES.......................................5
4.01 Representations and Warranties of the Company....................5
(a) Due Organization.............................................5
(b) Power and Authority; No Violation............................5
(c) Legal Matters................................................6
(d) Truth and Correctness........................................6
(e) Purchased Shares.............................................6
(f) Investment Company Act.......................................6
(g) No Brokers...................................................6
(h) Reports and Financial Statements.............................6
4.02 Representations and Warranties of the Investor...................7
(a) Due Organization.............................................7
(b) Power and Authority; No Violation............................7
(c) Legal Matters................................................7
(d) Securities Representation....................................8
(e) Investment Company Act.......................................8
(f) Truth and Correctness........................................9
(g) No Brokers...................................................9
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ARTICLE 5 CONDITIONS TO OBLIGATIONS............................................9
5.01 Conditions to the Obligation of the Company......................9
(a) Representations and Warranties True..........................9
(b) HSR Act......................................................9
(c) Purchase Price...............................................9
(d) Resolutions.................................................10
(e) No New Statutes.............................................10
(f) Omnipoint Reorganization Agreement..........................10
(g) Consents....................................................10
5.02 Conditions to the Obligation of the Investor....................10
(a) Representations and Warranties True.........................10
(b) HSR Act.....................................................10
(c) Stock Certificates..........................................10
(d) Resolutions.................................................10
(e) No New Statutes.............................................11
(f) Omnipoint Reorganization Agreement..........................11
(g) Consents....................................................11
ARTICLE 6 MISCELLANEOUS.......................................................11
6.01 Expenses........................................................11
6.02 Equitable Remedies..............................................11
6.03 Notices.........................................................11
(a) if to the Company, to it at:................................11
(b) if to the Investor, to it at;...............................12
6.04 Entire Agreement................................................12
6.05 Remedies Cumulative.............................................13
6.06 Governing Law...................................................13
6.07 Counterparts....................................................13
6.08 Waivers.........................................................13
6.09 Successors and Assigns..........................................13
6.10 Further Assurances..............................................13
6.11 Disclosures.....................................................13
6.12 Termination.....................................................13
(a) Events Triggering Termination...............................13
(b) No Further Obligation.......................................14
6.13 Jurisdiction, Consent to Service of Process.....................14
6.14 No Claim of Immunity............................................14
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STOCK SUBSCRIPTION AGREEMENT
STOCK SUBSCRIPTION AGREEMENT, dated as of September 17, 1999
(the "Agreement"), by and between VOICESTREAM WIRELESS HOLDING CORPORATION, a
Delaware corporation (the "Company"), and SONERA LTD., a Finnish limited
liability company ("Investor").
W I T N E S S E T H:
WHEREAS, the Company is engaged in the communications business
in the United States;
WHEREAS, upon the terms and conditions set forth in this
Agreement, the Company has determined to issue and sell, and the Investor has
determined to purchase, for an aggregate purchase price of Five Hundred Million
Ten ($500,000,010) Dollars in cash, 8,771,930 shares of Common Stock, par value
.001 per share, of the Company (the "Common Stock").
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and promises hereinafter set forth, the parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Unless the context otherwise requires, the terms defined
hereunder shall have the meanings therein specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
defined herein. For purposes of this Agreement:
"Aerial Reorganization Agreement" shall mean the Agreement and
Plan of Reorganization, dated as of September 17, 1999, among the Company,
Aerial Communications, Inc., a Delaware corporation ("Aerial"), Telephone and
Data Systems, Inc., a Delaware corporation ("TDS"), VoiceStream Wireless
Corporation, a Washington corporation ("VoiceStream"), and VoiceStream
Subsidiary III Corporation, a Delaware corporation and wholly owned subsidiary
of the Company ("Sub"), pursuant to which Sub shall merge with and into Aerial
(the "Aerial Merger").
"Affiliate" shall mean, with respect to any party hereto, any
corporation or other business entity which directly or indirectly through stock
ownership or through any other arrangement either controls, is controlled by or
is under common control with, such party. The term "control" shall mean the
power to direct the affairs of such Person by reason of ownership of voting
stock or other equity interests, by contract or otherwise.
"Agreement " shall have the meaning set forth in the preamble
hereof.
"Beneficially Own" shall have the meaning set forth in Rule
l3d-3 of the Exchange Act.
"Business Day" shall mean any day other than a Saturday,
Sunday or a legal holiday in New York, New York, Helsinki, Finland, Seattle,
Washington or any other day on which commercial banks in those locations are
authorized by law or governmental decree to close.
"Closing" shall have the meaning set forth in Section 2.02.
"Closing Date " shall have the meaning set forth in Section
2.02.
"Common Stock" shall have the meaning set forth in the
preamble hereof.
"Company" shall have the meaning set forth in the preamble
hereof.
"Dollar" or "$" shall mean the basic unit of the lawful
currency of the United States of America.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
and any similar or successor Federal statute, and the rules and regulations
promulgated thereunder, all as amended, and as the same may be in effect from
time to time.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act of 1976, as amended.
"Investor" shall have the meaning set forth in the preamble
hereof.
"Liens" shall mean any lien, claim, security interest, charge,
encumbrance or title retention agreement of any nature.
"Material Adverse Effect on the Company" shall mean a material
adverse effect on the financial condition, operations or business of the Company
and its subsidiaries, taken as a whole, or the ability of the Company to enter
into and consummate the transactions contemplated by this Agreement in
accordance with its terms.
"Omnipoint Reorganization Agreement" shall mean the Agreement
and Plan of Reorganization, dated as of June 23, 1999, by and among the Company,
VoiceStream. and Omnipoint Corporation, a Delaware corporation.
"Person" shall mean any general or limited partnership,
corporation, joint venture, trust, business trust, governmental agency,
cooperative, association, individual or other entity, and heirs, executors,
administrators, legal representatives, successors and assigns of such Person.
"Purchase Price" shall have the meaning set forth in Section
2.01.
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"Purchased Shares" shall have the meaning set forth in Section
2.01.
"SEC" shall mean the Securities and Exchange Commission or its
successors.
"Securities Act" shall mean the Securities Act of 1933, and
any similar or successor Federal statute, and the rules and regulations
promulgated thereunder, all as amended, and as the same may be in effect from
time to time.
When a reference is made in this Agreement to a Section, such
reference shall be to a Section of this Agreement unless otherwise indicated.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." The use of a gender herein shall be deemed to include the neuter,
masculine and feminine genders whenever necessary or appropriate. Whenever the
word "herein" or "hereof"' is used in this Agreement, it shall be deemed to
refer to this Agreement and not to a particular Section of this Agreement unless
expressly stated otherwise.
ARTICLE 2
PURCHASE OF STOCK; CLOSING
2.01 Purchase of Stock.
Upon the terms and conditions herein set forth, the Investor
hereby subscribes for and agrees to purchase from the Company, and the Company
hereby accepts the Investor's subscription for and agrees to sell to the
Investor, 8,771,930 shares of Common Stock (collectively the "Purchased Shares")
for a purchase price per share equal to Fifty-Seven ($57.00) Dollars, for an
aggregate purchase price of Five Hundred Million Ten ($500,000,010) Dollars
(collectively, the "Purchase Price").
2.02 Closing.
(a) Closing Date. Consummation of the purchase of the
Purchased Shares (the "Closing") shall take place, subject to the satisfaction
(or express written waiver) of all conditions to the Closing under Article 5
hereof, simultaneously with the consummation of the transactions contemplated by
the Omnipoint Reorganization Agreement. The date on which the Closing takes
place shall be referred to herein as the "Closing Date."
(b) Location. The Closing shall take place at 11:00 A.M. on
the Closing Date, at the offices of the Company located at 0000 000xx Xxxxxx,
XX, Xxxxxxxx, Xxxxxxxxxx 00000 or at such other place as the parties hereto
shall agree. At the Closing the Company shall, upon receipt of the Purchase
Price by wire transfer of immediately available funds to the account specified
therefor by the Company, promptly deliver to the Investor duly executed and
issued stock certificates evidencing the Purchased Shares. The Company shall
give the Investor not less than seven (7) days notice of the Closing Date and
the account to which the wire transfer should be made.
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ARTICLE 3
COVENANTS AND AGREEMENTS
3.01 Covenant of the Company. From and after the execution and delivery
of this Agreement to and including the Closing Date, the Company shall use its
best efforts to cause the transactions contemplated by this Agreement to be
consummated in accordance with the terms hereof.
3.02 Covenant of the Investor. From and after the execution and
delivery of this Agreement to and including the Closing Date, the Investor shall
use its best efforts to cause the transactions contemplated by this Agreement to
be consummated in accordance with the terms hereof.
3.03 HSR Act. It is understood that the consummation of this
transaction may be subject to the filing with the Federal Trade Commission and
the Antitrust Division of the Department of Justice of reports and notifications
which are required under the HSR Act and the expiration or termination of
certain applicable waiting periods under the HSR Act without objection by such
authorities. If required the Investor and the Company shall file, or cause to be
filed, as soon as practicable following the date hereof and in no event later
than ten (10) Business Days from the date hereof, with the Federal Trade
Commission and the Antitrust Division of the Department of Justice any and all
such reports or notifications and any other filings required under any other
Federal law or administrative regulations in connection with the purchase of the
Purchased Shares under this Agreement.
3.04 FCC Consent. The consummation of the transactions contemplated
hereby may be subject to the prior approval or waiver of the FCC and one or more
state regulatory commissions. The parties shall use their best efforts to file
with the FCC and any relevant state regulatory commissions, to the extent the
prior approval or waiver of the FCC or of such regulatory commissions shall be
required, as soon as practicable following the date hereof and in no event later
than ten (10) Business Days from the date hereof, an application requesting the
approval or waiver of the FCC and of any such regulatory commissions to the
transactions contemplated hereby.
3.05 Cooperation. Each of the parties hereto shall diligently take or
cooperate in the taking of all steps which are necessary or appropriate to
expedite the prosecution and favorable consideration of such applications. The
parties covenant and agree to undertake all actions reasonably requested by the
Federal Trade Commission, the Antitrust Division of the Department of Justice,
the FCC or other regulatory commission and to file such material as shall be
necessary or required to obtain any necessary approvals or waivers or other
authority in connection with the foregoing applications.
3.06 Certificate. Investor agrees to execute and deliver to the Company
upon the closing of the Omnipoint Reorganization and on the closing of the
Aerial Merger a certificate in the form attached hereto as Schedule 3.06.
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3.07 Merger Consideration. In connection with the Aerial Merger,
Investor agrees that neither it nor any of its Affiliates shall submit a Cash
Election Form pursuant to Section 2(d) of the Aerial Reorganization Agreement.
3.08 Settlement Agreement. Investor has concurrently herewith executed
and delivered the Settlement Agreement and Release in the form attached hereto
as Schedule 3.08.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.01 Representations and Warranties of the Company. The Company
represents and warrants to the Investor, which representations and warranties
shall survive the execution and delivery of this Agreement and the consummation
of the transactions herein contemplated, as follows:
(a) Due Organization. The Company is a corporation duly
organized, validly existing and in good standing under the laws of the State of
Delaware.
(b) Power and Authority; No Violation. The Company has full
power and authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. This Agreement
and all transactions contemplated hereby have been duly and validly authorized
by all necessary action on the part of the Company and this Agreement
constitutes a legal, valid and binding obligation of the Company enforceable in
accordance with its terms except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to enforcement of creditors' rights generally. Neither the execution, delivery
or performance of this Agreement nor the consummation of the transactions
contemplated hereby by the Company will, with or without the giving of notice or
the passage of time, or both, (i) conflict with, result in a default or loss of
rights (or give rise to any right of termination, cancellation or acceleration)
under, or result in the creation of any Lien, pursuant to (A) any provision of
the certificate of incorporation, by-laws, stockholders agreements or other
constituent documents of the Company; (B) any note, bond, indenture, mortgage,
deed of trust, contract, agreement, lease or other instrument or obligation to
which the Company is a party or by which the Company or its property may be
bound or affected except for any default or loss of rights, which individually
or in the aggregate, would not have a Material Adverse Effect on the Company; or
(C) any law, order, judgment, ordinance, rule, regulation or decree to which the
Company is a party or by which it or its property is bound or affected; or (ii)
give rise to any right of first refusal or similar right with respect to any
interest, or any properties or assets, of the Company. Except as set forth on
Schedule 4.01(b) hereof, no permit, consent, approval, authorization,
qualification or registration of, or declaration to or filing with any
governmental or regulatory authority or agency or third party is required to be
obtained or made by the Company in connection with the execution and delivery of
this Agreement or the consummation of the transactions contemplated hereby or
thereby in order to (A) render this Agreement or the transactions contemplated
hereby or thereby valid and effective and (B) enable the Company to sell the
Purchased Shares.
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(c) Legal Matters. There is no claim, legal action,
counterclaim, suit, arbitration, governmental investigation or other legal,
administrative or tax proceeding, nor any order, decree or judgment, in progress
or pending, or to the knowledge of the Company threatened, against or relating
to the right of the Company to perform its obligations under this Agreement, nor
does the Company know or have reason to be aware of any basis for the same.
There is outstanding no order, writ, injunction, judgment or decree of any
court, governmental agency or arbitration tribunal which would individually or
in the aggregate impair in any material respect the performance of the
obligations of the Company hereunder or the consummation of the transactions
contemplated by this Agreement other than orders or decrees involving the
wireless telephone industry in general.
(d) Truth and Correctness. No representation or warranty by
the Company in this Agreement contains or will contain any untrue statement of a
material fact or omits or will omit to state a material fact necessary to make
the statements contained herein, in light of the circumstances under which such
statements are made, not misleading.
(e) Purchased Shares. The Purchased Shares (i) have been duly
authorized by all necessary corporate action on the part of the Company, (ii)
shall be (when issued in accordance with the terms of this Agreement) validly
issued and outstanding, fully paid and nonassessable, and (iii) shall not be
subject to any preemptive rights of the holders of any other class or series of
the capital stock of the Company, except for rights, if any, pursuant to the
Investor Agreement, dated as of June 23, 1999, among Xxxxxxxxxx
Telecommunications PCS (USA) Limited, Xxxxxxxxxx Telecommunications Limited and
the Company. At the Closing, the Purchased Shares shall be free and clear of all
Liens, with the exception of any restrictions on transferability under the
Securities Act or any securities laws of any jurisdiction.
(f) Investment Company Act. The Company is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
(g) No Brokers. No agent, broker, investment banker, Person or
firm is or will be entitled to any broker's or finder's fee or any other
commission or similar fee directly or indirectly in connection with the
transactions contemplated by this Agreement based in any way on any
arrangements, agreements or understandings made by or on behalf of the Company
or an Affiliate thereof, and the Company hereby agrees to indemnify the Investor
and agrees to hold harmless the Investor against and in respect of any claims
for brokerage and other commissions relating to such transactions based in any
way on any arrangements, agreements or understandings made by or on behalf of
the Company or an Affiliate thereof.
(h) Reports and Financial Statements. The Company has filed
all reports required to be filed with the SEC since May 3, 1999, (collectively,
including all exhibits thereto, the "SEC Reports"). None of such SEC Reports, as
of their respective dates (as amended through the date hereof), contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light of
the circumstances under which they were made, not misleading. Each of the
financial statements (including the related notes) included in the SEC Reports
presents fairly, in all material respects, the consolidated financial position
and consolidated results of operations and cash flows of the
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Company and its subsidiaries as of the respective dates or for the respective
periods set forth therein, all in conformity with generally accepted accounting
principles consistently applied during the periods involved, subject, in the
case of the unaudited interim financial statements, to normal yearend
adjustments and any other adjustments described therein. All such SEC Reports,
as of their respective dates (as amended through the date hereof), complied in
all material respects with the requirements of the Exchange Act.
4.02 Representations and Warranties of the Investor. Investor
represents and warrants to the Company, which representations and warranties
shall survive the execution and delivery of this Agreement and the consummation
of the transactions herein contemplated, as follows:
(a) Due Organization. Investor is a limited liability company
duly organized validly existing and in good standing under the laws of the
Republic of Finland.
(b) Power and Authority; No Violation. The Investor has full
power and authority to execute, deliver and perform its obligations under this
Agreement and to consummate the transactions contemplated hereby. This Agreement
and all transactions contemplated hereby have been duly and validly authorized
by all necessary action on the part of the Investor and this Agreement
constitutes a legal, valid and binding obligation of the Investor enforceable in
accordance with its terms, except as such enforceability may be limited by
bankruptcy, insolvency, moratorium or other similar laws affecting or relating
to enforcement of creditors' rights generally. Neither the execution, delivery
or performance of this Agreement nor the consummation of the transactions
contemplated hereby by the Investor will, with or without the giving of notice
or the passage of time, or both, (i) conflict with, result in a default or loss
of rights (or give rise to any right of termination, cancellation or
acceleration) under, or result in the creation of any Lien, pursuant to (A) any
provision of the memorandum and articles of association, certificate of
incorporation, by-laws, stockholders agreements or other constituent documents
of the Investor; (B) any material note, bond, indenture, mortgage, deed of
trust, contract, agreement, lease or other instrument or obligation to which the
Investor is a party or by which it or its property may be bound or affected,
except for any default or loss of rights, which, individually or in the
aggregate would not have a material adverse effect on the Investor or its
ability to perform its obligations under this Agreement or to purchase the
Purchased Shares; or (C) any law, order, judgment, ordinance, rule, regulation
or decree to which the Investor is a party or by which it or its property is
bound or affected; or (ii) give rise to any right of first refusal or similar
right with respect to any interest, or any properties or assets, of the
Investor. No permit, consent, approval, authorization, qualification or
registration of, or declaration to or filing with any governmental or regulatory
authority or agency or third party is required to be obtained or made by the
Investor in connection with the execution and delivery of this Agreement or the
consummation of the transactions contemplated hereby in order to (A) render this
Agreement or the transactions contemplated hereby valid and effective and (B)
enable the Investor to purchase the Purchased Shares.
(c) Legal Matters. There is no claim, legal action,
counterclaim, suit, arbitration, governmental investigation or other legal,
administrative or tax proceeding, nor any order, decree or judgment, in progress
or pending, or to the knowledge of the Investor
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threatened, against or relating to the Investor's right to perform its
obligations under this Agreement, nor does the Investor know or have reason to
be aware of any basis for the same. There is outstanding no order, writ,
injunction, judgment or decree of any court, governmental agency or arbitration
tribunal which would individually or in the aggregate impair in any material
respect the performance of the Investor's obligations hereunder or the
consummation of the transactions contemplated by this Agreement other than
orders or decrees involving the wireless telephone industry in general.
(d) Securities Representation. The Investor acknowledges that:
(i) it is not a United States Person (as defined in Regulation S under the
Securities Act) and, in determining to enter into this Agreement, purchase the
Purchased Shares and perform its obligations hereunder, has made its decision
outside the United States; (ii) it is an accredited investor (as defined in Rule
501 under the Securities Act); (iii) it has such knowledge and experience in
financial and business matters that it is capable of evaluating the merits and
risks of investing in the Company as contemplated hereby or, alternatively, that
it has engaged the services of a representative who has such knowledge and
experience in financial and business matters as to be capable of evaluating the
merits and risks of the proposed investment and who has reviewed the proposed
investment on its behalf, (iv) the Purchased Shares being delivered by the
Company to the Investor have not been registered under the Securities Act or
under the securities laws of any state in reliance upon Federal and state
exemptions for offshore transactions or transactions not involving a public
offering and are not being acquired with a view to the distribution thereof
except pursuant to a registration statement in compliance with Federal and state
securities laws or an exemption therefrom; (v) the Purchased Shares must be held
by the Investor indefinitely unless subsequently so registered or if an
exemption from such registration is available; and (vi) it has received
information concerning the Company and has had the opportunity to obtain
additional information as desired in order to evaluate the merits and risks
inherent in holding the Purchased Shares. The Investor agrees that the share
certificate(s) which the Investor receives from the Company shall be legended
with the following legend:
"THE SECURITIES HAVE NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED, EXCEPT PURSUANT TO AN EXEMPTION FROM
REGISTRATION THEREUNDER OR PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT THEREUNDER."
(e) Investment Company Act. The Investor is not an "investment
company" within the meaning of the Investment Company Act of 1940, as amended.
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(f) Truth and Correctness. No representation or warranty by
the Investor in this Agreement contains or will contain any untrue statement of
a material fact or omits or will omit to state a material fact necessary to make
the statements contained herein, in light of the circumstances under which such
statements are made, not misleading.
(g) No Brokers. No agent, broker, investment banker, Person or
firm other than ARC Associates is or will be entitled to any broker's or
finder's fee or any other commission or similar fee directly or indirectly in
connection with the transactions contemplated by this Agreement based in any way
on any arrangements, agreements or understandings made by or on behalf of the
Investor or an Affiliate thereof, and the Investor hereby agrees to indemnify
the Company and agrees to hold harmless the Company against and in respect of
any claims for brokerage and other commissions relating to such transactions
based in any way on any arrangements, agreements or understandings made by or on
behalf of the Investor or an Affiliate of the Investor, including any fees,
amounts or commissions owed to ARC Associates.
ARTICLE 5
CONDITIONS TO OBLIGATIONS
5.01 Conditions to the Obligation of the Company. The obligation of the
Company to perform, fulfill or carry out its agreements, undertakings and
obligations herein made or expressed to be performed, fulfilled or carried out
on the Closing Date is and shall be subject to fulfillment of or compliance
with, on or prior to the Closing Date, the following conditions precedent, any
of which may be waived by the Company in its sole discretion, in whole or in
part:
(a) Representations and Warranties True. The Investor's
representations and warranties contained in this Agreement shall be deemed to
have been made again at and as of the time of the Closing Date and shall then be
true in all material respects. The Investor shall have performed and complied in
all material respects with all agreements and covenants required by this
Agreement to be performed or complied with by it prior to or at the Closing
Date. The Company shall have been furnished with a certificate of the Investor
signed by one of its senior executive officers, dated the Closing Date,
certifying to the fulfillment of the foregoing conditions by it and to the truth
and correctness in all material respects, except for changes contemplated by
this Agreement, as of the Closing Date, of the representations and warranties
made by it contained herein and the satisfaction on the part of the Investor of
all conditions to the obligations of the Company under this Section 5. 01.
(b) HSR Act. The waiting periods, if applicable, of the HSR
Act shall have expired or been terminated.
(c) Purchase Price. The Investor shall have delivered the
Purchase Price to the Company as required hereunder.
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(d) Resolutions. The Company shall have been furnished with
certified copies of the resolutions duly adopted by the board of directors of
the Investor authorizing the execution, delivery and performance of this
Agreement.
(e) No New Statutes. No statute, rule or regulation shall have
been enacted by any state or Federal government or governmental agency in the
United States or Finland which would render the consummation of this Agreement
unlawful.
(f) Omnipoint Reorganization Agreement. The transactions
contemplated by the Omnipoint Reorganization Agreement shall have been, or
simultaneously with the consummation of the transactions contemplated hereby
shall be, consummated in accordance with its terms.
(g) Consents. Any FCC consents required for the consummation
of the transactions contemplated hereby shall have been obtained, without any
conditions or restrictions which would have a Material Adverse Effect on the
Company, and such consents are final and nonappealable.
5.02 Conditions to the Obligation of the Investor. The obligation of
the Investor to perform, fulfill or carry out its agreements, undertakings and
obligations herein made or expressed to be performed, fulfilled or carried out
on the Closing Date is and shall be subject to fulfillment of or compliance
with, on or prior to the Closing Date, the following conditions precedent, any
of which may be waived by the Investor, in its sole discretion, in whole or in
part:
(a) Representations and Warranties True. Each of the Company's
representations and warranties contained in this Agreement shall be deemed to
have been made again at and as of the time of the Closing Date and shall then be
true in all material respects. The Company shall have performed and complied in
all material respects, with all agreements and covenants required by this
Agreement to be performed or complied with by it prior to or at the Closing
Date. The Investor shall have been furnished with a certificate of the Company
signed by one of its senior executive officers, dated the Closing Date,
certifying to the fulfillment of the foregoing conditions by it and to the truth
and correctness in all material respects, except for changes contemplated by
this Agreement, as of the Closing Date, of the representations and warranties
made by it contained herein and the satisfaction on the part of the Company of
all conditions to the obligations of the Investor under this Section 5.02.
(b) HSR Act. The waiting periods, if applicable, of the HSR
Act shall have expired or been terminated.
(c) Stock Certificates. The Company shall have delivered to
the Investor duly executed and issued stock certificates representing the
Purchased Shares.
(d) Resolutions. The Company shall have delivered to the
Investor a certified copy of the resolution or resolutions duly adopted by its
board of directors authorizing the execution, delivery and performance of this
Agreement.
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(e) No New Statutes. No statute, rule or regulation shall have
been enacted by any state or Federal government or governmental agency in the
United States or Finland which would render the consummation of this Agreement
unlawful.
(f) Omnipoint Reorganization Agreement. The transactions
contemplated by the Omnipoint Reorganization Agreement shall have been, or
simultaneously with the consummation of the transactions contemplated hereby
shall be, consummated in accordance with its terms.
(g) Consents. Any FCC consents required for the consummation
of the transactions contemplated hereby shall have been obtained, without any
conditions or restrictions which would have a material adverse effect on the
ability of the Investor to comply with its obligations hereunder, and such
consents are final and nonapplicable.
ARTICLE 6
MISCELLANEOUS
6.01 Expenses. Each party shall bear its own expenses incident to the
negotiation, preparation, authorization and consummation of this Agreement and
the transactions contemplated hereby, including all fees and expenses of its
counsel and accountants, whether or not such transactions are consummated.
6.02 Equitable Remedies. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with the specific terms of the provisions or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Agreement
and to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity. Each party agrees
that it will not assert, as a defense against a claim for specific performance,
that the party seeking specific performance has an adequate remedy at law.
6.03 Notices. All notices, claims and other communications hereunder
shall be in writing and shall be made by hand delivery, registered or certified
mail (postage prepaid, return receipt requested), facsimile, or overnight air
courier guaranteeing next day delivery
(a) if to the Company, to it at:
VoiceStream. Wireless Holding Corporation
0000 000xx Xxxxxx, XX
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Facsimile No.: 000-000-0000
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with a copy (which shall not constitute notice) to:
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: 000-000-0000
and
Xxxxxxx Xxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile No.: 206-623-7022
(b) if to the Investor, to it at;
Sonera Ltd.
P.O. Box, Fin - 00051 - Tele
Xxxxxxxxxxxxxx 00,
Xxxxxxxx, Xxxxxxx
Attention: Xxxxx Xxxxxxxx, Esq.
Facsimile No.: 011-358-2040-3414
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxx LLP
0000 X. Xx. X. X.
Xxxxxxxxxx, X.X. 00000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile No.: 000-000-0000
or at such other address as any party may from time to time furnish to the other
parties by a notice given in accordance with the provisions of this Section
6.03. All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; five (5) Business
Days after being deposited in the mail, first class postage prepaid, return
receipt requested, if mailed; when receipt is confirmed, if sent by facsimile;
and the next Business Day after timely delivery to the courier, if sent by an
overnight air courier service guaranteeing next day delivery.
6.04 Entire Agreement. This Agreement, together with the Schedules
annexed hereto, contains the entire understanding among the parties hereto
concerning the subject matter hereof and this Agreement may not be changed,
modified, altered or terminated except by an agreement in writing executed by
the parties hereto. Any waiver by any party of any of its rights
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under this Agreement or of any breach of this Agreement shall not constitute a
waiver of any other rights or of any other or future breach.
6.05 Remedies Cumulative. Except as otherwise provided herein, each and
all of the rights and remedies in this Agreement provided, and each and all of
the rights and remedies allowed at law and in equity in like case, shall be
cumulative, and the exercise of one right or remedy shall not be exclusive of
the right to exercise or resort to any and all other rights or remedies provided
in this Agreement or at law or in equity.
6.06 Governing Law. This Agreement shall be construed in accordance
with and subject to the laws and decisions of the State of Delaware applicable
to contracts made and to be performed entirely therein.
6.07 Counterparts. This Agreement may be executed in several
counterparts hereof, and by the different parties hereto on separate
counterparts hereof, each of which shall be an original, but such counterparts
shall together constitute one and the same instrument.
6.08 Waivers. No provision in this Agreement shall be deemed waived
except by an instrument in writing signed by the party waiving such provision.
6.09 Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and to their respective successors
and assigns; provided, however, that except as otherwise expressly set forth in
this Agreement neither the rights nor the obligations of either party may be
assigned or delegated without the prior written consent of the other party.
6.10 Further Assurances. The Investor shall, at the request of the
Company, and the Company shall, at the request of the Investor, 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.
6.11 Disclosures. No public announcement by any party hereto with
regard to the transactions contemplated hereby or the material terms hereof
shall be issued by any party without the mutual prior consent of the other
parties, except that in the event the parties are unable to agree on a press
release and legal counsel for one party is of the opinion that such press
release is required by law and such party furnishes the other party a written
opinion of outside legal counsel, or other counsel reasonably acceptable to the
party being furnished such opinion, to that effect, then such party may issue
the legally required press release.
6.12 Termination.
(a) Events Triggering Termination. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned, without
further obligation of the Company and the Investor, at any time prior to the
Closing Date as follows:
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(i) by mutual written consent duly authorized by the
boards of directors of the Company and the Investor; or
(ii) by the Company or the Investor if the Omnipoint
Reorganization Agreement shall have been terminated and the transactions
contemplated thereby abandoned; or
(iii) by the Company or the Investor if the
consummation of the transactions contemplated hereby shall be prohibited by a
final, non-appealable order, decree or injunction of a court of competent
jurisdiction.
(b) No Further Obligation. In the event of a termination of
this Agreement, no party hereto shall have any liability or further obligation
to any other party to this Agreement except that nothing herein will relieve any
party from liability for any breach of this Agreement.
6.13 Jurisdiction, Consent to Service of Process. (a) Each party hereby
irrevocably consents and submits to the jurisdiction of the United States
District Court for the District of Delaware and any court of the State of
Delaware, in any action, suit or proceeding arising out of, resulting from or
relating to this Agreement, and agrees that any such action, suit or proceeding
shall be brought only in such courts (and waives any objection based on forum
non conveniens or any objection to venue therein); provided, however, that such
consent to jurisdiction is solely for the purpose referred to in this Section
6.13 (a) and shall not be deemed to be a general submission to the jurisdiction
of said courts or the State of Delaware other than for such purpose.
(b) The Investor hereby irrevocably appoints The Corporation
Trust Company, at its office at 0000 Xxxxxx Xxxxxx, Xxxxxxxxxx, Xxxxxxxx, Xxxxxx
Xxxxxx of America, its lawful agent and attorney to accept and acknowledge
service of any process against it in any action, suit or proceeding arising out
of, resulting from or relating to this Agreement, and upon whom such process may
be served, with the same effect as if the Investor were a resident of the State
of Delaware, and had been lawfully served with such process in such
jurisdiction, and waives all claims of error by reason of such service, provided
that in the case of any service upon such agent and attorney the Company shall
also deliver a copy thereof to the Investor at the address and in the manner
specified in Section 6.03 hereof. In the event that such agent and attorney
resigns or otherwise becomes incapable of acting as such, the Investor will
appoint a successor agent and attorney in Wilmington, Delaware, reasonably
satisfactory with like powers, or if the Investor fails to make such
appointment, the Investor hereby authorizes the Company to appoint such agent
and attorney for the Investor. The Investor shall pay the annual fee due to The
Corporation Trust Company or such successor agent for acting in such capacity;
provided, however, that if the Investor shall not make such payment, then the
Company shall have the right to do so.
6.14 No Claim of Immunity. The Investor agrees that, to the extent that
it or any of its property, its Affiliates, or any property of its Affiliates is
or becomes entitled at any time to any immunity, on the grounds of sovereignty
or otherwise, based upon its status as an
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agency or instrumentality of government, from any arbitration, legal action,
suit or proceeding or from setoff or counterclaim relating to this Agreement,
from the jurisdiction of any arbitrator or competent court, from service of
process, from attachment prior to judgment, from attachment in aid of execution
of a judgment, from execution pursuant to a judgement or arbitration award, or
from any other legal process in any jurisdiction, it, for itself, its
Affiliates, its property and that of its Affiliates, expressly, irrevocably and
unconditionally agrees not to plead or claim, any such immunity with respect to
such matters arising with respect to this Agreement or the subject matter hereof
(including any obligation for the payment of money).
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IN WITNESS WHEREOF, the parties hereto have executed this
Stock Subscription Agreement as of the date first above written.
VOICESTREAM WIRELESS HOLDING
CORPORATION
By:
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Name:
Title:
SONERA LTD.
By:
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Name:
Title:
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Schedule 4.01(b)
Required Consents, Approvals, Filings, Etc.
Stockholder approval of VoiceStream Holding
Any FCC or state regulatory approval
Appropriate SEC Filings
HSR Filing
