VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is made and entered into as of
this 3 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"); Providence Media Partners L.P., a Delaware
limited partnership ("Providence"); Xxxxxxxxx Telecommunications PCS (USA)
Limited, a British Virgin Islands corporation ("Xxxxxxxxx PCS"); and Xxxxxxxxx
Telecommunications Holdings (USA) Limited, a British Virgin Islands corporation
("Xxxxxxxxx Holdings"; Xxxxxxxxx PCS and Xxxxxxxxx Holdings are hereinafter
referred to collectively as "Xxxxxxxxx") (each of H&F, Xxxxxxx, GSC, Providence
and Xxxxxxxxx are hereinafter referred to individually as a "Shareholder" and
collectively as the "Shareholders").
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 Common Stock (as hereinafter defined) owned by it, which shares
represent 80.1% of the issued and outstanding shares of Common Stock, to WWC's
shareholders, including the Shareholders party hereto, on the basis of one share
of Common Stock for each one share of WWC's outstanding common stock (the
"Spin-Off");
WHEREAS, effective with the Spin-Off, the Company will be authorized to
issue 300,000,000 shares of Common Stock, of which 95,541,623 shares will be
issued and outstanding immediately after the Spin-Off;
WHEREAS, immediately after the Spin-Off, each of the Shareholders will
own the number of shares of Common Stock set forth opposite its respective name
on Schedule 1 annexed hereto; and
WHEREAS, simultaneously with the consummation of the Spin-Off (the date
of such consummation being hereinafter referred to as the "Effective Date"),
this Agreement shall be in full force and effect in accordance with its terms in
order, among other things, to set forth certain matters relating to the
management of the Company.
NOW THEREFORE, in consideration of the mutual covenants herein
contained and for other good and valuable consideration, the Shareholders and
the Company agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
have the meanings set forth below:
1.1 "Agreement" has the meaning given in the preamble.
1.2 "Arbitrators" has the meaning given in Section 6.12(i).
1.3 "Beneficially Own" has the meaning set forth in Rule 13d-3 of
the Securities and Exchange Act of 1934, as amended; except that no broker or
dealer or any affiliate thereof shall be deemed to Beneficially Own shares of
Common Stock, the beneficial ownership of which is acquired in the ordinary
course of the activities of a broker or dealer registered under Section 15 of
the Securities Exchange Act of 1934, as amended, including, but not limited to,
the acquisition of beneficial ownership of such securities as a result of any
market-making or underwriting activities (including any shares acquired for the
investment account of a broker or dealer in connection with such underwriting
activities), or the exercise of investment or voting discretion authority over
any of its
customer accounts, or the acquisition in good faith of such securities in
connection with the enforcement of payment of a debt previously contracted.
1.4 "Board" means the Board of Directors of the Company.
1.5 "BSF" has the meaning given in the preamble.
1.6 "Business Day" means 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.
1.7 "Common Stock" means the Company's Common Stock, no par value,
and shall include any new, substituted and additional securities issued at any
time in replacement of the Common Stock or issued or delivered with respect to
the Common Stock.
1.8 "Company" has the meaning given in the preamble.
1.9 "Dispute" has the meaning given in Section 6.12.
1.10 "Effective Date" has the meaning given in the recitals.
1.11 "Exchange Act" means the Securities Exchange Act of 1934, as
amended.
1.12 "GS" has the meaning given in the preamble.
1.13 "GSC" has the meaning given in the preamble.
1.14 "GSCP" has the meaning given in the preamble.
1.15 "H&F" has the meaning given in the preamble.
1.16 "HFCP II" has the meaning given in the preamble.
1.17 "HTL" means Xxxxxxxxx Telecommunications Limited, a corporation
organized under the laws of Hong Kong.
1.18 "Xxxxxxxxx" has the meaning given in the preamble.
1.19 "Immediate Family" means an individual's spouse, children
(including adopted children), grandchildren and parents.
1.20 "International" has the meaning given in the preamble.
1.21 "JWS" has the meaning given in the preamble.
1.22 "Orchard" has the meaning given in the preamble.
1.23 "Percentage Ownership" means, as to any Shareholder, the
aggregate percentage of the outstanding shares of Common Stock Beneficially
Owned by such Shareholder, including for this purpose, shares Beneficially Owned
by such Shareholder's Permitted Affiliated Transferees.
1.24 "Permitted Affiliate Transferee" means (i) with respect to any
Shareholder who is a natural Person, any member of such Person's Immediate
Family, or any trust for the benefit of, or a partnership all of the partners of
which are, such Person and/or any member of such Person's Immediate Family; (ii)
with respect to any Shareholder which is a limited partnership, (a) any Person
that, as of May 13, 1996, was the sole general partner of such Shareholder or
was the sole general partner of the sole general partner of such Shareholder,
(b) another limited partnership which has a sole general partner, the control of
which sole general partner is held, directly or indirectly, by five or fewer
natural Persons, provided such natural Persons had control at May 13, 1996 of
the sole general
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partner of such Shareholder or (iii) with respect to Xxxxxxxxx, (x) HTL, (y) any
Subsidiary of HTL, or (z) any other entity acceptable to Shareholders (other
than Xxxxxxxxx and its Permitted Affiliate Transferees) holding at least a
majority of the Common Stock owned by all Shareholders (other than Xxxxxxxxx and
its Permitted Affiliate Transferees) in which HTL owns, directly or indirectly,
more than 40% of the outstanding voting power, or (c) in the case of any Person
referred to in clause (x), (y) or (z), Xxxxxxxxx. For purposes of this
definition, "control" shall mean ownership of at least 51% of the equity
interest in, and at least 51% of the voting power on all matters in, an entity
or, if applicable, the sole general partner of such entity.
1.25 "Person" means an individual, corporation, association,
partnership, trust or estate, an unincorporated organization, a joint venture, a
government or any agency or political subdivision thereof, or any other entity
of whatever nature.
1.26 "PN" has the meaning given in the preamble.
1.27 "Providence" has the meaning given in the preamble.
1.28 "SCC" has the meaning given in the preamble.
1.29 "SFT" has the meaning given in the preamble.
1.30 "Shareholder" has the meaning given in the preamble.
1.31 "Spin-Off" has the meaning given in the recitals.
1.32 "SSF" has the meaning given in the preamble.
1.33 "Xxxxxxx" has the meaning given in the preamble.
1.34 "Subsidiary" means, as to any Person, another Person which is
an entity as to which such Person owns more than 50% of the outstanding voting
power.
1.35 "TEG" has the meaning given in the preamble.
1.36 "Transfer" means any sale, assignment, pledge, hypothecation,
gift or other transfer, disposition or encumbrance of any interest (and includes
an exchange of shares in a merger, consolidation or similar transaction).
1.37 "WWC" has the meaning given in the recitals.
1.38 "WWC Shareholders Agreement" has the meaning given in the
preamble.
Each definition or pronoun herein shall be deemed to refer to the
singular, plural, masculine, feminine or neuter as the context requires. Words
such as "herein, "hereinafter," "hereof," "hereto" and "hereunder" refer to this
Agreement as a whole, unless the context otherwise requires. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation."
2. Effectiveness; Legend.
2.1 This Agreement shall become effective on the Effective Date. If
the Effective Date does not occur on or before December 31, 1999, this Agreement
shall terminate and be of no further force or effect whatsoever.
2.2 All certificates representing shares of Common Stock now or
hereafter issued by the Company to any of the Shareholders or their Permitted
Affiliate Transferees shall be subject to this Agreement and shall bear the
following legend:
"The shares evidenced by this certificate or any certificate issued
in exchange or transfer therefor are and will be subject to the terms of a
certain Voting Agreement, dated as of May 3, 1999, by and among certain
shareholders of the Company."
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The requirement that the above legend be placed upon certificates evidencing any
such Common Stock shall cease and terminate upon the earlier of (i) the Transfer
of such Common Stock to any Person other than a Permitted Affiliate Transferee,
and (ii) as to any Shareholder and its Permitted Affiliate Transferees, the
termination of this Agreement as to such Shareholder and its Permitted Affiliate
Transferees. Upon the occurrence of any event requiring the removal of a legend
hereunder, the Company, upon the surrender of certificates containing such
legend, shall, at its own expense, deliver to the holder of any such Common
Stock as to which the requirement for such legend shall have terminated, one or
more new certificates evidencing such Common Stock not bearing such legend.
3. Management of the Corporation.
3.1 Board of Directors. Pursuant to the Company's by-laws, the Board
shall be constituted of ten (10) directors, subject to increase as provided in
this Section 3.1. Each of the Shareholders (and its Permitted Affiliate
Transferees) agrees that it will vote, or cause to be voted, all of the shares
of Common Stock Beneficially Owned by it (whether now owned or hereafter
acquired), in person or by proxy (and shall take all other necessary or
desirable actions within such Shareholder's (or its Permitted Affiliate
Transferees') control, including attendance at meetings in person or by proxy
for purposes of obtaining a quorum and execution of written consents in lieu of
meetings), for the election and continuation in office of the following ten (10)
members: (a) JWS, for so long as he is the Chief Executive Officer of the
Company or he, together with his Permitted Affiliate Transferees, Beneficially
Own at least 4,500,000 shares of Common Stock; (b) two (2) designees of
Xxxxxxxxx (or if Xxxxxxxxx has Transferred all of its shares of Common Stock to
Permitted Affiliate Transferees of Xxxxxxxxx, two (s) designees of such
Permitted Affiliate Transferees); (c) two (2) designees of H&F (or, if H&F has
Transferred all of its shares of Common Stock to Permitted Affiliate Transferees
of H&F, two (2) designees of such Permitted Affiliate Transferees); (d) one (1)
designee of GSC (or, if GSC has Transferred all of its shares of Common Stock to
Permitted Affiliate Transferees of GSC, one (1) designee of such Permitted
Affiliate Transferees); (e) one (1) designee selected by a majority vote of
Xxxxxxx (or, if Xxxxxxx has Transferred all of its shares of Common Stock to
Permitted Affiliate Transferees of Xxxxxxx, of such Permitted Affiliate
Transferees) and Providence (or, if Providence has Transferred all of its shares
of Common Stock to Permitted Affiliate Transferees of Providence, of such
Permitted Affiliate Transferees) (it being understood that such designee is in
addition to JWS for so long as JWS shall serve on the Board by reason of his
holding the office of Chief Executive Officer of the Company or his, together
with his Permitted Affiliate Transferees, Beneficially Owning at least 4,500,000
shares of Common Stock); and (f) three (3) designees selected by a majority vote
of the persons selected as provided above. Xxxxxxx (and its Permitted Affiliate
Transferees) agrees with respect to the designee to the Board selected by the
vote of Xxxxxxx and Providence (or their respective Permitted Affiliate
Transferees) that from and after the date hereof and for so long as (i) JWS is
serving as the Chief Executive Officer of the Company or he, together with his
Permitted Affiliate Transferees, Beneficially Own at least 4,500,000 shares of
Common Stock, (ii) Xxxxxxx and Providence (and their respective Permitted
Affiliate Transferees) shall collectively Beneficially Own at least 4,500,000
shares of Common Stock, and (iii) Providence (or its Permitted Affiliate
Transferees) shall Beneficially Own at least 2,500,000 shares of Common Stock,
Xxxxxxx (and its Permitted Affiliate Transferees) shall so vote, or cause to be
voted, all of the shares of Common Stock owned or held of record by Xxxxxxx (and
its Permitted Affiliate Transferees) for one designee of Providence (and its
Permitted Affiliate Transferees). In addition, Xxxxxxxxx shall have the right to
designate an additional director (and the Board shall in each case be expanded
by one member to accommodate such new designee) when Xxxxxxxxx'x aggregate
Percentage Ownership exceeds each of the following thresholds: 27.25%, 33.33%,
38.5%, 42.9%, 46.67% and 50%; and each of the Shareholders (and each of their
respective Permitted Affiliate Transferees) agrees that it will vote, or cause
to be voted, all of the shares of Common Stock Beneficially Owned by it (whether
now owned or hereafter acquired), in person or by proxy (and shall take all
other necessary or desirable actions within such Shareholder's (or its Permitted
Affiliate Transferees') control including attendance at meetings in person or by
proxy for purposes of obtaining a quorum and execution of written consents in
lieu of meetings), for the election and continuation in office of such designees
and to cause any requisite expansion of the Board to accommodate such designees.
No designee to the Board shall be removed from the Board (except
removal for cause under applicable law) without the written consent of the
Shareholder or group of Shareholders who has the right to designate such Person
to the Board (or, if such Shareholder or group of Shareholders has Transferred
all of their shares of Common Stock to Permitted Affiliate Transferees of such
Shareholder or group of Shareholders, without the written consent of Permitted
Affiliate Transferees holding a majority of the shares owned by all of such
Permitted Affiliate Transferees). Any Shareholder or group of Shareholders (or,
if such Shareholder or group of Shareholders has Transferred all of their shares
of Common Stock to Permitted Affiliate Transferees of such Shareholder or group
of Shareholders, Permitted Affiliate Transferees holding a majority of the
shares owned by all of such Permitted Affiliate Transferees) who has the
4
right to designate any member(s) of the Board shall have the right to replace
any member(s) so designated by it (whether or not such member is removed from
the Board with or without cause or ceases to be a member of the Board by reason
of death, disability or for any other reason) upon written notice to the Company
and the other members of the Board, which notice shall set forth the name of the
member(s) being replaced and the name of the new member(s). Each of the
Shareholders (and each of their respective Permitted Affiliate Transferees)
agrees that it will vote, or cause to be voted, all of the shares of Common
Stock Beneficially Owned by it (whether now owned or hereafter acquired), in
person or by proxy (and shall take all other necessary or desirable actions
within such Shareholder's (or its Permitted Affiliate Transferees') control
including attendance at meetings in person or by proxy for purposes of obtaining
a quorum and execution of written consents in lieu of meetings), so as to cause
the election and continuation in office of any successor director designated by
any of the Shareholders (or any of such Shareholder's Permitted Affiliate
Transferees) pursuant to this Section 3.1. Notwithstanding the foregoing,
(a) if at any time H&F (and its Permitted Affiliate
Transferees) shall cease to Beneficially Own at least (i) 9,800,000 shares of
Common Stock, then in such event, H&F (or, if H&F has Transferred all of its
shares of Common Stock to Permitted Affiliate Transferees of H&F, its Permitted
Affiliate Transferees) shall be entitled to designate only one member of the
Board; and (ii) 4,500,000 shares of Common Stock, then in such event, H&F (or,
if H&F has Transferred all of its shares of Common Stock to Permitted Affiliate
Transferees of H&F, its Permitted Affiliate Transferees) shall not be entitled
to designate any member of the Board;
(b) if at any time GSC (or, if GSC has Transferred all of its
shares of Common Stock to Permitted Affiliate Transferees of GSC, its Permitted
Affiliate Transferees) shall cease to Beneficially Own at least 4,500,000 shares
of Common Stock, then in such event, GSC (or, if GSC has Transferred all of its
shares of Common Stock to Permitted Affiliate Transferees of GSC, its Permitted
Affiliate Transferees) shall not be entitled to designate any member of the
Board;
(c) if at any time Xxxxxxx and Providence (and their respective
Permitted Affiliate Transferees) shall cease collectively to Beneficially Own at
least 4,500,000 shares of Common Stock, then in such event, they shall not be
entitled to designate any member of the Board (except that JWS shall continue to
serve on the Board for so long as he holds the office of Chief Executive Officer
of the Company); and
(d) if at any time Xxxxxxxxx (and its Permitted Affiliate
Transferees) shall cease to Beneficially Own at least (i) 9,800,000 shares of
Common Stock, then in such event Xxxxxxxxx (or, if Xxxxxxxxx has Transferred all
of its shares of Common Stock to Permitted Affiliate Transferees of Xxxxxxxxx,
its Permitted Affiliate Transferees) shall be entitled to designate only one
member of the Board; and (ii) 4,500,000 shares of Common Stock, then in such
event, Xxxxxxxxx (or, if Xxxxxxxxx has Transferred all of its shares of Capital
Stock to Permitted Affiliate Transferees of Xxxxxxxxx, its Permitted Affiliate
Transferees) shall not be entitled to designate any member of the Board. In
addition, if Xxxxxxxxx shall have designated additional director(s) (in excess
of the two (2) specified above) by reason of an increase in its Percentage
Ownership as set forth in this Section 3.1 above, and at any time thereafter the
Percentage Ownership of Xxxxxxxxx (and its Permitted Affiliate Transferees)
shall be less than the Percentage Ownership entitling Xxxxxxxxx to such
additional director(s), then in such event Xxxxxxxxx (or, if Xxxxxxxxx has
Transferred all of its shares of Common Stock to Permitted Affiliate Transferees
of Xxxxxxxxx, its Permitted Affiliate Transferees) shall cease to be entitled to
designate such additional director(s). Any vacancies on the Board created by
reason of the provisions of subsections (a) through (d) above shall be filled by
the directors then in office to serve until the next annual meeting of
shareholders of the Company, and at the next annual meeting shall be filled by a
vote of a plurality of all shareholders (including the Shareholders and their
Permitted Affiliate Transferees) of the Company; provided, however, that in the
event that the size of the Board shall have increased by reason of Xxxxxxxxx
having the right to designate additional director(s) and thereafter Xxxxxxxxx
shall cease to have the right to so designate such additional director(s), the
size of the Board shall be appropriately reduced and each of the Shareholders
(and each of their respective Permitted Affiliate Transferees) agrees that it
will vote, or cause to be voted, all of the shares of Common Stock Beneficially
Owned by it (whether now owned or hereafter acquired), in person or by proxy
(and shall take all other necessary or desirable actions within such
Shareholder's (or its Permitted Affiliate Transferees') control including
attendance at meetings in person or by proxy for purposes of obtaining a quorum
and execution of written consents in lieu of meetings), to cause such reduction
in the Board.
(e) Notwithstanding anything to the contrary contained in this
Agreement, Xxxxxxxxx'x right to transfer its right to designate directors to
certain block transferees as set forth in Sections 14 and 15 of the Shareholders
Agreement of VoiceStream
5
Wireless Corporation, dated February 17, 1998, as amended, among WWC, the
Company and Xxxxxxxxx PCS, shall continue in full force and effect until
terminated in accordance with the terms of such Shareholders Agreement.
(f) The number of shares referred to in this Section 3.1 shall
be appropriately adjusted for any stock dividends, stock splits, reverse splits,
combinations, recapitalizations and the like occurring after the date hereof.
3.2 Company Covenant. The Company hereby agrees to use all
reasonable efforts to give effect to the provisions of Section 3.1. In this
regard, the Company shall, subject to the provisions of Section 3.1, duly
nominate the designees set forth above for election to the Board and shall
include in any proxy solicitation materials related to the election of members
of the Board such information and recommendations of the Board as are
appropriate in proxy solicitation materials. Each Shareholder shall vote such
Shareholder's shares of Common Stock at any regular or special meeting of the
Shareholders or in any written consent executed in lieu of such a meeting of
Shareholders for the election of such designees. The Company and each
Shareholder shall take all other actions necessary to ensure that the
certificate of incorporation and by-laws of the Company or any successor
constituent documents as in effect immediately following the date hereof do not,
at any time thereafter, conflict in any respect with the provisions of this
Agreement.
4. Representations and Warranties.
Each of the Company, HFCP II, Orchard, International, JWS, TEG, PN,
SFT, SCC, GS, GSCP, BSF, SSF, Providence and Xxxxxxxxx hereby represents and
warrants to the other parties as follows:
(a) Such Person has full power and authority to execute,
deliver and perform its obligations under this Agreement;
(b) This Agreement and all transactions contemplated hereby
have been duly and validly authorized by all necessary action on the part of
such Person and this Agreement constitutes the legal, valid and binding
obligation of such Person enforceable against it in accordance with its terms;
and
(c) Neither the execution, delivery or performance of this
Agreement by such Person, 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 the
certificate of incorporation, by-laws, partnership agreement or comparable
constituent document of such Person, (ii) any material note, bond, indenture,
mortgage, deed of trust, contract, agreement, lease or other instrument or
obligation to which any such Person is a party or by which it or its properties
may be bound or affected or (iii) any law, order, judgment, ordinance, rule,
regulation or decree to which any such Person is a party or by which it or any
of its properties are bound or affected.
5. Term.
This Agreement shall terminate upon the earliest to occur of any of
the following events:
(a) Upon agreement by all Shareholders then retaining the right
to designate directors under this Agreement; or
(b) 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
(c) The Beneficial Ownership of all of the Common Stock by only
one Shareholder (including its Permitted Affiliate Transferees).
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6. Miscellaneous.
6.1 Successors, Assigns and Transferees. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their Permitted
Affiliate Transferees. Each of the Shareholders hereby agrees that prior to any
Transfer of any Common Stock to a Permitted Affiliate Transferee, such Permitted
Affiliate Transferee shall execute a counterpart of this Agreement agreeing to
be bound by the provisions of this Agreement. No Transfer to a Permitted
Affiliate Transferee shall be effective unless such Permitted Affiliate
Transferee has executed such counterpart of this Agreement.
6.2 Specific Performance, Etc. Each of the parties hereto
acknowledges and agrees that, in the event of any breach of this Agreement, the
non-breaching parties would be irreparably harmed and could not be made whole by
monetary damages. Accordingly, each of the parties hereto agrees that the other
parties, in addition to any other remedy to which they may be entitled at law or
in equity, shall be entitled to compel specific performance of this Agreement
pursuant to Section 6.12(x).
6.3 Headings. The headings 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.
6.4 Notices. All notices, requests, demands and other communications
hereunder shall be in writing and 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 (i) if to a Shareholder, at such Shareholder's address appearing below
or at any other address that such Shareholder may have provided in writing to
the Company and the other Shareholders then party to this Agreement and (ii) if
to the Company, at 3650 000 Xxxxxx XX, Xxxxxxxx, Xxxxxxxxxx 00000, U.S.A., Tel:
(000) 000-0000, Fax: (000) 000-0000; Attention: Xxxx X. Xxxxxx, Esq., or such
other address as the Company may have furnished to the Shareholders in writing,
with a copy (which shall not constitute notice) to Xxxxxxxx Xxxxxx & Xxxxxx LLP,
000 Xxxxx Xxxxxx, Xxx Xxxx, XX 00000, XXX, Tel: (000) 000-0000, Fax: (212)
000-0000, Attention: Xxxxx X. Xxxxxxx. 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 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 JWS, TEG, PN, SFT or SCC:
c/o Stanton Communications, Inc.
000 Xxxxxx XX
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx
Facsimile: (000) 000-0000
with a copy to (which shall not constitute notice):
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Facsimile: (000) 000-0000
(b) if to GS, GSCP, 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
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with a copy to (which shall not constitute notice):
Xxxxxx X. Xxxxxxx, Esq.
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxx Xxxx Xxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
(c) if to HFCPII, 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
(d) 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 (which shall not constitute notice):
Xxxxx X. Xxxxxxx, Esq.
Xxxxxxx & Xxxxxx
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxx Xxxxxx 00000
Facsimile: (000) 000-0000
(e) if to Xxxxxxxxx:
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
0
Xxxx Xxxx
Xxxxxxxxx: Xxxxx Xxxx
Tel: (000) 0000-0000
Fax: (000) 0000-0000
and
Xxxxxxxxx Telecommunications Holdings (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 to (which shall not constitute notice):
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
6.5 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 Shareholder (and its Permitted Affiliate Transferees), 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 similar events occurring after the date
hereof.
6.6 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 shareholders
agreements containing the provisions of this Agreement.
6.7 Waivers. 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 Company
and each of the Shareholders. 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.
6.8 Amendments. This Agreement may be amended or modified at any
time by a writing setting forth such amendment or modification, signed by the
Company and by Shareholders (or their Permitted Affiliate Transferees) owning in
the aggregate at least 90% of the aggregate Voting Power of the Shareholders
(and their Permitted Affiliate Transferees); provided, however, that, unless
such amendment is signed by the Company and by each Shareholder (or its
Permitted Affiliate Transferees) adversely affected by such amendment, no such
amendment or modification shall (i) eliminate any right of any Shareholder (or
its Permitted Affiliate Transferees) to designate the member or members of the
Board it is entitled to designate in accordance with Section 3.1 hereof (it
being understood and agreed that this clause (i) shall not prohibit the
enlargement of the Board) or (ii) change the Effective Date.
9
6.9 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original, and all of which
together shall be considered one and the same agreement.
6.10 Obligations Several. The obligations of each of the
Shareholders under this Agreement shall be several with respect to each such
Shareholder.
6.11 Entire Agreement. This Agreement constitutes the entire
understanding of the parties hereto with respect to the subject matter hereof
and supersedes all prior understandings among such parties with respect to such
subject matter.
6.12 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 hereto agrees that, subject to Section 6.12 hereof,
any suit, action or other proceeding arising out of this Agreement shall be
brought and litigated in the courts of the State of Washington or the United
States District Court for the Western District of Washington and each party
hereto 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.
6.13 Arbitration. Any and all disputes, controversies or claims
(each a "Dispute") between the Shareholders relating to the interpretation or
enforcement or performance of this Agreement shall be resolved by binding
arbitration by the American Arbitration Association in accordance with its
rules, subject to the following provisions:
(i) There shall be three arbitrators (the "Arbitrators") which
shall be appointed in accordance with the procedures of the American Arbitration
Association.
(ii) The expenses of the arbitration shall be borne equally by
the Shareholders involved in the arbitration, 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 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 Seattle, Washington,
unless otherwise agreed by the parties, and shall be conducted in the English
language.
10
(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 6.12, 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 6.12.
6.14 Failure to Pursue Remedies. The failure of any party to seek
redress for violation of, or to insist upon the strict performance 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.
6.15 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.
6.16 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 provision were omitted.
11
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
XXXXXXXXX TELECOMMUNICATIONS PCS
(USA) LIMITED
By: /s/ Xxxx Xxxx
-----------------------------------------------
Name: Xxxx Xxxx
Title: Director
XXXXXXXXX TELECOMMUNICATIONS HOLDINGS
(USA) LIMITED)
By: /s/ Khoo Chek Ngee
-----------------------------------------------
Name: Khoo Chek Ngee
Title: Director
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
12
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
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, Trustees
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
00
XXXXXX XXXXXX XXXX 0000, L.P.
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
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
14
VOTING 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.,
XXXXXXXXX TELECOMMUNICATIONS HOLDINGS (USA) LIMITED,
AND
XXXXXXXXX TELECOMMUNICATIONS PCS (USA) LIMITED
DATED: MAY 3, 1999
15
TABLE OF CONTENTS
SECTION PAGE
------- ----
1. Certain Definitions ................................................... 2
1.1 "Agreement" ...................................................... 2
1.3 "Beneficially Own" ............................................... 2
1.4 "Board" .......................................................... 3
1.5 "BSF" ............................................................ 3
1.6 "Business Day" ................................................... 3
1.7 "Common Stock" ................................................... 3
1.8 "Company" ........................................................ 3
1.9 "Dispute" ........................................................ 3
1.10 "Effective Date" ................................................. 3
1.11 "Exchange Act" ................................................... 3
1.12 "GS" ............................................................. 3
1.13 "GSC" ............................................................ 3
1.14 "GSCP" ........................................................... 3
1.15 "H&F" ............................................................ 4
1.16 "HFCP II" ........................................................ 4
1.17 "HTL" ............................................................ 4
1.18 "Xxxxxxxxx" ...................................................... 4
1.19 "Immediate Family" ............................................... 4
1.20 "International" .................................................. 4
1.21 "JWS" ............................................................ 4
1.22 "Orchard" ........................................................ 4
1.23 "Percentage Ownership" ........................................... 4
1.24 "Permitted Affiliate Transferee" ................................. 4
1.25 "Person" ......................................................... 5
1.26 "PN" ............................................................. 5
1.27 "Providence" ..................................................... 5
1.28 "SCC" ............................................................ 5
1.29 "SFT" ............................................................ 5
1.30 "Shareholder" .................................................... 5
1.31 "Spin-Off" has the meaning ....................................... 5
1.32 "SSF" ............................................................ 5
1.33 "Xxxxxxx" ........................................................ 5
1.34 "Subsidiary" ..................................................... 5
1.35 "TEG" ............................................................ 5
1.36 "Transfer" ....................................................... 6
1.37 "WWC" ............................................................ 6
1.38 "WWC Shareholders Agreement" has the meaning given in the
preamble ......................................................... 6
2. Effectiveness; Legend ................................................. 6
3. Management of the Corporation ......................................... 7
3.1 Board of Directors ............................................... 7
3.2 Company Covenant ................................................. 11
4. Representations and Warranties ........................................ 12
5. Term .................................................................. 12
6. Miscellaneous ......................................................... 13
16
6.1 Successors, Assigns and Transferees .............................. 13
6.2 Specific Performance, Etc ........................................ 14
6.3 Headings ......................................................... 14
6.4 Notices .......................................................... 14
6.5 Exchanges, Recapitalizations, Etc. Affecting the Company's
Common Stock ..................................................... 17
6.6 Inspection and Compliance with Law ............................... 17
6.7 Waivers .......................................................... 18
6.8 Counterparts ..................................................... 18
6.9 Obligations Several .............................................. 18
6.10 Entire Agreement ................................................. 18
6.11 Applicable Law ................................................... 18
6.12 Arbitration ...................................................... 19
6.13 Failure to Pursue Remedies ....................................... 22
6.14 Cumulative Remedies .............................................. 22
6.15 Severability ..................................................... 22
17
Schedule 1
to
Voting Agreement
NO. OF SHARES
OF COMMON STOCK
NAME OF SHAREHOLDER OWNED BY SHAREHOLDERS
------------------- ---------------------
Xxxxxxx & Xxxxxxxx Capital Partners II, L.P. 11,108,169
H&F Orchard Partners, L.P. 993,648
H&F International Partners, L.P. 197,180
GS Capital Partners, L.P. 8,986,738
Xxxxxx Xxxxxx Xxxx 0000, X.X. 270,069
Stone Street Fund 1992, L.P. 470,401
The Xxxxxxx Xxxxx Group, L.P. 68,821
PN Cellular, Inc. 1,685,069
Xxxxxxx Communications Corporation 1,274,519
Xxxx X. Xxxxxxx & Xxxxxxx X. Xxxxxxxxx 3,257,774
Xxxxxxx Family Trust 164,437
Providence Media Partners L.P. 3,338,768
Xxxxxxxxx Telecommunications PCS (USA) Limited 19,010,364
Xxxxxxxxx Telecommunications Holdings (USA) Limited 3,888,888
18
