Exhibit 99.7
EXECUTION COPY
SETTLEMENT AGREEMENT AND RELEASE
This SETTLEMENT AGREEMENT AND RELEASE (this "Agreement") is
entered into as of the 17th day of September 1999 by and among SONERA LTD., a
limited liability company organized under the laws of the Republic of Finland
("Sonera"), SONERA CORPORATION U.S., a Delaware corporation and wholly-owned
subsidiary of Sonera ("Sonera U.S."), TELEPHONE AND DATA SYSTEMS, INC., a
Delaware corporation ("TDS"), AERIAL COMMUNICATIONS, INC., a Delaware
corporation and majority-owned subsidiary of TDS ("Aerial"), and AERIAL
OPERATING COMPANY, INC., a Delaware corporation and majority-owned subsidiary of
Aerial ("AOC"). This Agreement is joined by VOICESTREAM WIRELESS CORPORATION, a
Washington corporation ("VoiceStream"), and VOICESTREAM WIRELESS HOLDING
CORPORATION, a Delaware corporation ("Holding"), solely for purposes of Articles
I through II and VIII through X hereof. (Sonera, Sonera U.S., TDS, Aerial and
AOC, and with respect to Articles I through II and Articles VIII through X
hereof VoiceStream and Holding, are hereafter collectively referred to as the
"parties")
R E C I T A L S:
WHEREAS, on June 1, 1998, Sonera, TDS, Aerial and AOC entered
into a Purchase Agreement (the "Purchase Agreement") pursuant to which Sonera
agreed
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to purchase Common Shares, par value $0.001 per share, of AOC ("AOC Common
Shares") in an aggregate amount of 2,410,482 AOC Common Shares (the "Purchased
Shares") for an aggregate purchase price of $200,000,000 (the "Purchase Price");
WHEREAS, the Purchase Agreement provides for an adjustment to
the Purchase Price by requiring that Sonera surrender up to 634,216 of the
Purchased Shares for cancellation in the event that, during the first three
years after the Closing Date (as defined below), the average of the daily means
of the high and low sales prices for Aerial Common Shares for any twenty
consecutive trading day period (the "Twenty-Day Aerial Average") exceeds certain
threshold prices (the "Threshold Prices");
WHEREAS, on August 31, 1998, in anticipation of the closing of
the Purchase Agreement, (1) TDS and AOC entered into a Revolving Credit
Agreement (the "Revolving Credit Agreement"); and (2) Aerial executed a
Guaranty, dated as of August 31, 1998 (the "Aerial Guaranty"), in favor of TDS;
WHEREAS, on September 8, 1998 (the "Closing Date"), the
parties consummated the closing of the Purchase Agreement by taking the
following actions, among others: (1) Sonera purchased the Purchased Shares from
AOC; (2) Sonera, TDS, Aerial and AOC entered into an Investment Agreement (the
"Investment Agreement"); (3) Sonera and Aerial entered into a Registration
Rights Agreement (the "Registration Rights Agreement"); (4) Sonera, TDS and
Aerial entered into a side letter (the "Management Side Letter"); (5) Sonera
U.S., Aerial and AOC entered into a Joint Venture Agreement (the
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"Joint Venture Agreement"); (6) Sonera, Aerial and AOC entered into a
Supplemental Agreement (the "Supplemental Agreement"); and (7) TDS, Aerial and
AOC entered into a Tax Allocation Agreement (the "Tax Allocation Agreement")
(the Purchase Agreement, Investment Agreement, Registration Rights Agreement,
Management Side Letter, Joint Venture Agreement, Supplemental Agreement, Tax
Allocation Agreement, Revolving Credit Agreement and Aerial Guaranty being
hereafter collectively referred to as the "Sonera Arrangements");
WHEREAS, on December 18, 1998, TDS announced that it was
withdrawing its offer to exchange tracking stock for the outstanding Common
Shares, par value $1.00 per share, of Aerial ("Aerial Common Shares") and that
TDS intended to pursue a tax-free spin-off of the Aerial Common Shares owned by
TDS (the "Spin-Off"), as well as other alternatives;
WHEREAS, Sonera has expressed certain concerns to TDS and
Aerial in connection with the Spin-Off and the Sonera Arrangements, has
requested that certain provisions of the Sonera Arrangements be renegotiated and
has raised the possibility of litigation in connection therewith;
WHEREAS, on the basis of such concerns and possible
litigation, Sonera has not surrendered any of the 634,216 Aerial Common Shares
(the "Disputed Shares") for cancellation, notwithstanding that the Twenty-Day
Aerial Average has exceeded all three of the Threshold Prices;
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WHEREAS, Sonera, TDS, Aerial and AOC have engaged in discussions over the last
several months toward a possible settlement of the disputes between Sonera and
TDS, Aerial and AOC;
WHEREAS, Aerial has engaged in discussions with VoiceStream regarding a possible
business combination between Aerial and VoiceStream;
WHEREAS, as a result of such discussions, Aerial, TDS, VoiceStream, Holding and
VoiceStream Subsidiary III Corporation, a Delaware corporation ("Sub"), have
entered into an Agreement and Plan of Reorganization, dated as of September 17,
1999 (the "Reorganization Agreement"), providing for, among other things, the
merger of Sub with and into Aerial (the "Merger"), with Aerial surviving the
Merger as a wholly-owned subsidiary of either VoiceStream or Holding
(collectively, "Parent"); and
WHEREAS, the parties, each being counseled by their respective attorneys after
extensive negotiations, have agreed, in connection with the Merger, to provide
for certain adjustments to the Sonera Arrangements and to settle, resolve and
terminate all claims of any kind, known or unknown, which the parties may have
against each other arising on or prior to the date hereof;
NOW THEREFORE, in consideration of the premises and of the mutual covenants,
conditions and promises set forth below, the sufficiency of which is hereby
acknowledged by each of the parties, the parties hereby agree as follows:
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ARTICLE I
BASIS OF AGREEMENT
Section 1.1Nature of Obligations. (a) The parties agree that the transactions
contemplated by Article II, Section 3.1, Article IV, Article VII, Section 8.5
and Articles IX through X of this Agreement are not contingent upon the
consummation of the Merger. Accordingly, the parties agree that the obligation
to undertake the actions set forth in Article II, Section 3.1, Article IV,
Article VII, Section 8.5 and Articles IX through X hereof are effective as of
the date hereof.
(b) The parties agree that the transactions contemplated by Section 3.2,
Articles V through VI and Article VIII of this Agreement (other than Section
8.5) are contingent upon consummation of the Merger. Accordingly, in the absence
of consummation of the Merger for any reason, the parties shall have no
obligation to take the actions contemplated by Section 3.2, Articles V through
VI and Article VIII of this Agreement (other than Section 8.5); provided,
however, that the parties shall be required to take the actions contemplated by
Sections 3.2 and 5.1 of this Agreement immediately prior to the consummation of
the Merger if all of the conditions required to be satisfied prior to the
consummation of the Merger have been satisfied.
Section 1.2No Additional Obligation to Effect the Merger. In addition, the
parties hereto acknowledge and agree that this Agreement shall create no
additional obligation on, or
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additional commitment by, any of TDS, Aerial, AOC, VoiceStream or Holding not
otherwise contained in the Reorganization Agreement to consummate the Merger.
Section 1.3Defined Terms. All terms not otherwise defined herein shall have the
meanings ascribed to them in the Debt/Equity Agreement.
ARTICLE II
DEBT/EQUITY CONVERSION
Section 2.1 Debt/Equity Conversion. The parties hereby agree
that, with respect to, and as permitted by, the provisions of the Debt/Equity
Replacement Agreement, dated as of September 17, 1999 (the "Debt/Equity
Agreement"), among TDS, Aerial, AOC, VoiceStream and Holding:
(a) Notices. Neither the "Section 9.1(a) Notice" (as described
in Section 1.1(a) of the Debt/Equity Agreement) nor the "Section 4.1(d) Notice"
(as described in Section 1.2(a) of the Debt/Equity Agreement) shall be required.
(b) Aggregate Dollar Amount, Per Share Price and Number of
Shares.
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The aggregate dollar amount, per share price and number of shares to be issued
in connection with the equity issuances contemplated by the following sections
of the Debt/Equity Agreement shall be as follows, notwithstanding any provision
in the Investment Agreement or the Debt/Equity Agreement to the contrary:
(1) Sections 1.1(b) and (c):
(A) TDS Purchase Price: $420,000,000
(B) TDS Price Per Company Share: $22.00
(C) Company Shares: 19,090,909
Company Common Shares: 6,166,758
Company Series A Common Shares:
12,924,151
(2) Section 1.1(d):
(A) Investor Proceeds: $75,000,000
(B) Investor Price Per Company Share: $22.00
(C) Investor Subscription Shares: 3,409,091
(3) Section 1.1(e):
(A) Investor AOC Option Proceeds: $0
(B) Investor Price Per AOC Option Share: $0
(C) Investor AOC Option Shares: 0
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(4) Sections 1.2(b) and (c):
(A) Company Subscription Price: $495,000,000
(B) Company Price Per Operating Company Share:
$148.04218
(C) Company Subscription Shares: 3,343,642
(5) Section 1.2(d):
(A) Additional Investor Proceeds: $155,000,000
(B) Investor Price Per Operating Company
Share: $148.04218
(C) Additional Investor Subscription Shares:
1,046,999
(c) Closing Dates; Sequence; Place of Closing. Each of the
First Closing Date (as described in Section 2.1(a) of the Debt/Equity Agreement)
and the Second Closing Date (as described in Section 2.2(a) of the Debt/Equity
Agreement) shall occur on November 1, 1999, or on such other date as the parties
hereto shall agree in writing. Each of the transactions contemplated by the
First Closing shall be consummated prior to the consummation of the transactions
contemplated by the Second Closing, and the transactions contemplated by the
Second Closing shall be consummated at the Second Closing in the sequence set
forth in Section 2.2(a) of the Debt/Equity Agreement. Each of the First Closing
and the Second Closing shall take place at the offices of Sidley & Austin
located in Chicago, Illinois, or at such other location as the parties shall
agree in writing.
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Section 2.2 Confirmation; Agreement to Purchase. Sonera hereby
confirms its agreement with and acceptance of the terms and provisions of
Sections 1.1, 1.2, 1.4 through 1.7, 2.1(b) and (c), 2.2(b) and (c), and 2.3 of
the Debt/Equity Agreement and agrees to purchase, and Aerial and AOC agree to
sell to Sonera, the Investor Subscription Shares and the Additional Investor
Subscription Shares on the terms set forth in Section 2.1 hereof.
Section 2.3 Waiver. (a) Except as set forth in the Debt/Equity
Agreement and Sections 2.1 and 2.2 hereof, Sonera hereby expressly waives its
right to subscribe for Aerial Common Shares and Series A Common Shares of
Aerial, par value $1.00 per share ("Aerial Series A Common Shares" and, together
with Aerial Common Shares, "Aerial Common Stock") pursuant to Sections 9.1 and
9.2 of the Investment Agreement, to subscribe for AOC Common Shares pursuant to
Section 4.1 of the Investment Agreement and to purchase additional AOC Common
Shares pursuant to the AOC Option as set forth in Section 4.5 of the Investment
Agreement, in each case in connection with the issuances set forth in the
Debt/Equity Agreement by Aerial of Aerial Common Stock to TDS and by AOC of AOC
Common Shares to Aerial. No notice or action shall be required to be given or
taken pursuant to the Investment Agreement in connection with the foregoing.
(b) In addition, Sonera hereby expressly waives its right to
purchase additional AOC Common Shares pursuant to the Three-Year Option (as set
forth in Section 4.2 of the Investment Agreement) and the Seven-Year Option (as
set forth in
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Section 4.3 of the Investment Agreement) from the date hereof until the earlier
to occur of (1) the Effective Time (as defined in the Reorganization Agreement),
at which time such right will be terminated pursuant to Article VI hereof, or
(2) the termination of the Reorganization Agreement.
Section 2.4 Covenant of TDS, Aerial and AOC. Each of TDS,
Aerial and AOC hereby covenant not to amend Sections 1.1, 1.2, 1.4 through 1.7,
2.1(b) and (c), 2.2(b) and (c), and 2.3 of the Debt/Equity Agreement in any
manner which would have a material adverse effect on the rights of Sonera or
Sonera U.S. under this Agreement.
ARTICLE III
SURRENDER OF SHARES FOR CANCELLATION
Section 3.1 Initial Surrender of Disputed Shares for
Cancellation. (a) On the First Closing Date in connection with the First
Closing, Sonera shall surrender to AOC for cancellation 317,108 AOC Common
Shares (the "Surrendered Shares"), representing one-half of the Disputed Shares.
The parties agree that such surrender by Sonera of the Surrendered Shares shall
under no circumstances be deemed to be an admission by either Sonera, on the one
hand, or TDS, Aerial or AOC, on the other hand, of the validity of any Claim (as
defined in Section 8.3 hereof) by any other party with respect to the Disputed
Shares or otherwise prejudice any party with respect to any Claim in connection
with the Disputed Shares.
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(b) In the event that the Reorganization Agreement is
terminated and it is ultimately determined by a judicial or arbitration
tribunal, the decision of which is not appealed, that Sonera is entitled to the
return of any of the Surrendered Shares, then AOC shall promptly return such
number of Surrendered Shares to Sonera; provided, however, that if the return of
any of such Surrendered Shares to Sonera would cause AOC to no longer be
consolidated with Aerial for tax purposes (the "Excess AOC Shares"), then in
lieu of such Excess AOC Shares Aerial shall issue to Sonera that number of
Aerial Common Shares equal to the product of (1) such number of Excess AOC
Shares multiplied by (2) the Exchange Rate Applicable to Aerial Common Shares
(as defined in the Investment Agreement) then in effect; provided further, that
in the event the issuance to Sonera of any of such Aerial Common Shares would
cause Aerial to no longer be consolidated with TDS for tax purposes (the "Excess
Aerial Shares"), then in lieu of such Excess Aerial Shares the parties agree to
negotiate an appropriate and equitable resolution with respect thereto which
will not cause either AOC or Aerial to fail to remain consolidated with Aerial
or TDS, respectively, for tax purposes, but which will provide for a prompt
payment to Sonera of consideration of equivalent value to the fair market value
of such Excess Aerial Shares determined at the time of such resolution.
Section 3.2 Subsequent Surrender of Disputed Shares for
Cancellation. Sonera shall surrender to AOC the remaining 317,108 Disputed
Shares in the event that the Tag-Along Transaction (as defined in Section 4.1
hereof) is consummated, such surrender to be effected pursuant to the provisions
of Section 5.1 hereof. Such
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surrender shall be in full satisfaction of the adjustments to the Purchase Price
as required by Section 2.3(a) of the Purchase Agreement and all Claims with
respect to the Disputed Shares shall be released in accordance with Article VIII
hereof
ARTICLE IV
EXERCISE OF TAG-ALONG RIGHT
Section 4.1 Exercise of Tag-Along Right. Sonera hereby
exercises the tag-along right as set forth in Section 10.6 of the Investment
Agreement (the "Tag- Along Right") in connection with the Merger. The
transactions contemplated by the Tag-Along Right (the "Tag-Along Transaction")
shall be consummated as set forth in Article V hereof. No notice or action shall
be required to be given or taken pursuant to the Investment Agreement in
connection with such exercise, but Aerial will provide Sonera at least four (4)
business days prior notice of the date on which the Tag-Along Transaction will
occur.
ARTICLE V
CONSUMMATION OF TAG-ALONG TRANSACTION
Section 5.1 Exchange of AOC Common Shares. (a) Immediately
prior to the Effective Time, Sonera shall exchange all of the AOC Common Shares
then owned by Sonera or its Affiliates (as defined in Section 10.16 hereof) for
that number of Aerial
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Common Shares equal to the product of: (1) the difference of (A) the aggregate
number of AOC Common Shares set forth on the certificates then held by Sonera or
its Affiliates less (B) 317,108; multiplied by (2) the Exchange Rate Applicable
to Aerial Common Shares then in effect.
(b) To effect such exchange, (1) Sonera shall deliver to
Aerial one or more certificates, duly endorsed or accompanied by an appropriate
instrument of transfer, in form satisfactory to Aerial, representing such AOC
Common Shares and (2) Aerial shall deliver to Sonera a certificate issued in the
name of Sonera representing such Aerial Common Shares. No fractional Aerial
Common Shares, or scrip representing fractional Aerial Common Shares, shall be
issued upon such exchange, but in lieu thereof Aerial shall pay to Sonera in
cash an amount equal to the product of (1) such fractional Aerial Common Share
multiplied by (2) the Twenty-Day Aerial Average ending on the third trading day
prior to the day on which the Effective Time occurs.
Section 5.2 Exchange of Aerial Common Shares. At the Effective
Time, Sonera shall: (a) tender each of the Aerial Common Shares then owned by
Sonera or its Affiliates, including without limitation each Aerial Common Share
obtained by Sonera pursuant to the transactions contemplated by Section 5.1
hereof and the Debt/Equity Agreement as modified by this Agreement, in exchange
for the Per Share Stock Consideration (as defined in the Reorganization
Agreement); and (b) execute and deliver such other documents as may be
reasonably required in connection therewith,
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including the tax certificate in the form attached hereto as Exhibit 5.2.
ARTICLE VI
TERMINATION OF CERTAIN SONERA ARRANGEMENTS
Section 6.1 Termination of Certain Sonera Arrangements. As of
the Effective Time, each of the Purchase Agreement, the Investment Agreement,
the Registration Rights Agreement, the Management Side Letter, the Joint Venture
Agreement and the Supplemental Agreement shall terminate and be of no further
force or effect.
ARTICLE VII
ADDITIONAL COVENANTS
Section 7.1 Additional Purchases by Sonera of Aerial Shares.
Effective as of September 27, 1999, TDS, Aerial and AOC hereby waive the
provisions of Section 9.5 of the Investment Agreement during the term of this
Agreement. In the event that the Reorganization Agreement is terminated, such
waiver shall terminate concurrently therewith.
Section 7.2 Suspension of Certain Subscription Rights.
Notwithstanding the provisions of Section 4.1(b) of the Investment Agreement,
the parties agree that all
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of the proceeds from the sale of Aerial Common Stock for the period beginning
January 1, 1999 pursuant to all stock option, employee stock purchase, 401(k) or
other employee benefit programs maintained by Aerial shall be accumulated by
Aerial and shall not be transferred to AOC unless the Reorganization Agreement
is terminated. In the event that the Reorganization Agreement is terminated,
Aerial shall transfer to AOC such proceeds accumulated through the date of such
termination in exchange for AOC Common Shares within 90 days after termination
of the Reorganization Agreement and Sonera shall have the subscription rights
with respect to such transfer as set forth in Section 4.1(c) of the Investment
Agreement.
ARTICLE VIII
RELEASES; COVENANT NOT TO XXX
Section 8.1 Release by Sonera and Sonera U.S. As of the
Effective Time, Sonera and Sonera U.S., on behalf of each of themselves and each
of their respective predecessors, successors, subsidiaries, Affiliates, and
assigns, and each and every person who may purport to assert rights or claims
through them or on their behalf (collectively, the "Sonera Releasing Parties"),
individually and collectively, hereby release and forever discharge each of TDS,
Aerial, AOC, VoiceStream and Holding, their respective predecessors, successors,
subsidiaries, Affiliates, and assigns, the officers, directors, employees,
agents, attorneys, investment bankers, consultants, and representatives of each
of them acting in their capacity as such
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(collectively, the "TDS/VoiceStream Released Parties"), from, and covenant and
agree not to xxx any of the TDS/VoiceStream Released Parties with regard to, any
Claim (as defined in Section 8.3 hereof) by a Sonera Releasing Party against a
TDS/VoiceStream Released Party.
Section 8.2 Release by TDS, Aerial, AOC, VoiceStream and
Holding. As of the Effective Time, TDS, Aerial, AOC, VoiceStream and Holding, on
behalf of each of themselves and each of their respective predecessors,
successors, subsidiaries, Affiliates, and assigns, and each and every person who
may purport to assert rights or claims through them or on their behalf
(collectively, the "TDS/VoiceStream Releasing Parties"), individually and
collectively, hereby release and forever discharge each of Sonera and Sonera
U.S., their respective predecessors, successors, subsidiaries, Affiliates, and
assigns, the officers, directors, employees, agents, attorneys, investment
bankers, consultants, and representatives of each of them acting in their
capacity as such (collectively, the "Sonera Released Parties"), from, and
covenant and agree not to xxx any of the Sonera Released Parties with regard to,
any Claim by a TDS/VoiceStream Releasing Party against a Sonera Released Party.
Section 8.3 Claim. For purposes of this Article VIII, a
"Claim" shall mean any demand, action, claim, counterclaim, cross-claim,
liability, obligation, debt, cause of action, or lawsuit existing now or in the
future, whether currently known or unknown, accrued or unaccrued, foreseen or
unforeseen, whether legal, equitable, derivative, class, or of any other form,
and whether in contract, tort, statutory, or of any other
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nature, arising from or relating to any alleged act or failure to act occurring
at any time through the date hereof, including without limitation any Claim in
connection with (a) the Sonera Arrangements, (b) the Disputed Shares, (c) the
Spin-Off, (d) the Reorganization Agreement and (e) the agreements and
transactions contemplated by the Reorganization Agreement, including the Merger.
Section 8.4 Bring-Down of Release to Effective Date. (a)
Subject to paragraph (b) hereof, each of the parties agree to execute an
amendment to this Agreement as of the Effective Time (the "Bring-Down
Amendment") to amend Section 8.3 hereof by deleting the words "through the date
hereof" and replacing them with the words "through the Effective Time".
(b) The obligation of each party to execute the Bring-Down
Amendment shall be contingent upon the execution of the Bring-Down Amendment by
each other party. The obligation of Sonera and Sonera U.S. to execute the
Bring-Down Amendment is further conditioned upon (a) the delivery by TDS to
Sonera (by delivery of at least one copy to each of Sonera and its
representative identified in Section 10.4 hereof) of the final form of the
Reorganization Agreement and related agreements (as referred to in Section 8.3
hereof) not less than 30 days prior to the Effective Time and (b) Sonera being
advised on a timely basis of material changes or developments relating to the
Merger. Except as set forth in the immediately preceding two sentences, a party
shall not refuse to execute the Bring-Down Amendment unless each of the
following conditions is satisfied: (1) such party has made a good faith
determination
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that (A) such party has a demand, claim or cause of action arising from or
relating to any alleged act or failure to act occurring after the date hereof
and prior to the Effective Time (a "Bring-Down Claim"), (B) the facts underlying
the Bring-Down Claim provide a reasonable basis to support the Bring-Down Claim
and (c) such party intends to pursue such Bring-Down Claim; (2) such party
delivers prior to the Effective Time to each of the other parties a written
certification by an officer of such party specifying the nature of the
Bring-Down Claim and the party it intends to pursue; and (3) such party files
such Bring-Down Claim with a judicial or arbitration tribunal within 60 days
after the date of such written certification.
(c) The parties agree that neither the failure of any party to
execute and deliver the Bring-Down Amendment nor any other provision contained
in this Agreement shall affect the obligations under the Reorganization
Agreement of any party to the Reorganization Agreement to consummate the
transactions contemplated by the Reorganization Agreement.
Section 8.5 Covenant Not to Xxx. Each of the parties, on
behalf of itself and its Affiliates, hereby expressly agrees not to file any
lawsuit or initiate any action before any judicial or arbitration tribunal with
respect to any Claims until the earlier to occur of: (1) the Effective Time, at
which time all such Claims (other than any Bring- Down Claims in the event that
the Bring-Down Amendment is not fully executed and delivered pursuant to Section
8.4 hereof) will be released pursuant to this Article VIII; or (2) the
termination of the Reorganization Agreement, in which case all applicable
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statutes of limitations periods with respect to such Claims shall be deemed to
have been tolled during the period solely from the date hereof to the date of
such termination of the Reorganization Agreement.
ARTICLE IX
TERMINATION
Section 9.1 Termination. This Agreement shall terminate upon
the earlier to occur of the following:
(a) the termination of the Reorganization Agreement in the
event that the Effective Time has not occurred; or
(b) the mutual written consent of the parties hereto.
ARTICLE X
MISCELLANEOUS
Section 10.1 No Admission. Neither this Agreement nor any of
the negotiations in connection herewith or any prior negotiations between the
parties or their employees, agents or representatives, shall be construed as or
deemed to be an
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admission of the truth of any allegation or the validity of any Claim by any
party against another.
Section 10.2 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 referenced in Section 10.13 hereof, 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 or other
equitable remedy, that the party seeking such equitable remedy has an adequate
remedy at law.
Section 10.3 Remedies Cumulative. Except as otherwise provided
herein, each or any of the rights and remedies in this Agreement provided, and
each or any 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 or any other rights or
remedies provided in this Agreement or at law or in equity.
Section 10.4 Notices. All notices, claims and other
communications hereunder shall be in writing and shall be given by hand
delivery, facsimile, or overnight
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air courier guaranteeing next day delivery:
(a) if to TDS, at:
Telephone and Data Systems, Inc.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. XxXxx X. Xxxxxxx, Xx.
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Aerial Communications, Inc.
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Sidley & Austin
One First Xxxxxxxx Xxxxx
00xx Xxxxx - XX
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
(b) if to Aerial or AOC, at:
Aerial Communications, Inc.
0000 Xxxx Xxxx Xxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. Xxxxxx X. Xxxxxxxxx
Phone: (000) 000-0000
Fax: (000) 000-0000
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with a copy (which shall not constitute notice) to:
Telephone and Data Systems, Inc.
00 Xxxxx XxXxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: Xx. XxXxx X. Xxxxxxx, Xx.
Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Sidley & Austin
One First Xxxxxxxx Xxxxx
00xx Xxxxx - XX
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
(c) if to Sonera or Sonera U.S., at:
Sonera Ltd.
X.X. Xxx 000
XXX-00000-XXXX
Xxxxxxxxxxxxxx 00, XXXXXXXX
Attention: Xxxxx Xxxxxxxx, Esq.
Phone: 000-00-0-0000-0000
Fax: 000-00-0-0000-0000
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxx, L.L.P.
0000 X. Xxxxxx, X.X.
Xxxxxxxxxx, X.X. 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Phone: (000) 000-0000
Fax: (000) 000-0000
(d) if to VoiceStream or Holding, at
VoiceStream Wireless Corporation
0000 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: General Counsel
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Phone: (000) 000-0000
Fax: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxx Xxxxx & Xxxxx LLP
0000 Xxxxxxxx Xxxxxx
000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Phone: (000) 000-0000
Fax: (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
10.4. All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; when receipt
confirmed, if sent by facsimile; and on the next business day after timely
delivery to the courier, if sent by an overnight air courier service
guaranteeing next day delivery.
Section 10.5 Entire Agreement. This Agreement, and the Sonera
Arrangements as amended hereby, together with the schedules and exhibits annexed
hereto and thereto, contain 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.
Section 10.6 Waivers. No provision in this Agreement shall be
deemed waived except by an instrument in writing signed by the party waiving
such provision
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and any waiver by any party of any of its rights 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.
Section 10.7 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.
Section 10.8 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.
Section 10.9 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.
Section 10.10 Successors and Assigns. This Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns; provided, however, that the assignment of the
rights or the obligations of any party (other than to a successor by operation
of law) shall not be permitted without the prior written consent of the other
parties. Notwithstanding the
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immediately preceding sentence, Sonera may assign the right to acquire the
Investor Subscription Shares and the Additional Investor Subscription Shares
referenced in this Agreement and the Debt/Equity Agreement to a direct or
indirect wholly-owned subsidiary of Sonera, provided that such subsidiary agrees
to be bound by, and Sonera guarantees the performance of such subsidiary under,
this Agreement and the Investment Agreement.
Section 10.11 Further Assurances. Each party hereto shall, at
the request of any other party hereto, 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.
Section 10.12 Disclosures. (a) Each party hereto agrees to
maintain the confidentiality of the terms of this Agreement and shall not
disclose them to third parties, except as necessary to its agents,
representatives, bankers, investment bankers, counsel and employees who are
informed of the requirement of confidentiality, or as otherwise required by law
(including the requirement of TDS, Aerial, VoiceStream or Holding to disclose
such terms under the federal securities laws or under the rules of any
securities exchange on which its securities are listed, and including the
requirement of Sonera or any of its Affiliates to disclose such terms under the
securities laws of Finland or other applicable jurisdiction).
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(b) No public announcement with regard to the transactions
contemplated hereby or the material terms hereof (other than the press release
or releases to be issued by the parties hereto on September 20, 1999) shall be
issued by any party hereto without the mutual prior written consent of the other
parties, except to the extent that 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.
Section 10.13 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 10.13(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) Each of Sonera and Sonera U.S. hereby irrevocably appoint
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 it were a resident of the
State of Delaware, and
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had been lawfully served with such process in such jurisdiction, and waives all
claim of error by reason of such service, provided that in the case of any
service upon such agent and attorney, TDS, Aerial, AOC, VoiceStream or Holding,
as applicable, shall also deliver a copy thereof to Sonera or Sonera U.S., as
applicable, at the address and in the manner specified in Section 10.4 hereof.
In the event that such agent and attorney resigns or otherwise becomes incapable
of acting as such, each of Sonera and Sonera U.S. will appoint a successor agent
and attorney in Wilmington, Delaware, reasonably satisfactory to TDS, Aerial,
AOC, VoiceStream and Holding, with like powers, or if Sonera or Sonera U.S.
fails to make such appointment, Sonera or Sonera U.S., as applicable, hereby
authorizes each of TDS, Aerial, AOC, VoiceStream and Holding to appoint such
agent for Sonera or Sonera U.S., as applicable. Sonera and Sonera U.S. shall pay
the annual fee due to The Corporation Trust Company or such successor agent for
acting in such capacity; provided, however, that if neither Sonera or Sonera
U.S. shall make such payment, then each of TDS, Aerial, AOC, VoiceStream and
Holding shall have the right to do so.
Section 10.14 No Claim of Immunity. Each of Sonera and Sonera
U.S. agrees that, to the extent that it or any of its property, its Affiliates,
or 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 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
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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).
Section 10.15 Severability. In the event any provision of this
Agreement is found to be invalid or unenforceable in whole or in part, the
remaining provisions of this Agreement nevertheless shall be binding and the
invalid or unenforceable provision shall be replaced by a valid and enforceable
provision which comes closest to the intent or economic effect of the provision
to be replaced.
Section 10.16 Affiliate. For purposes of this Agreement,
"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, controls, is controlled by or is under common
control with, such party. The term "control" shall mean the possession, direct
or indirect, of the power to direct or cause the direction of the management or
policies of such person, whether by reason of ownership of voting stock or other
equity interests, by contract or otherwise.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
SONERA LTD.
By: /s/ Xxxxxx X. Xxxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Representative
SONERA CORPORATION U.S.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Representative
TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ XxXxx X. Xxxxxxx
----------------------------
Name: XxXxx X. Xxxxxxx
Title: Chairman
AERIAL COMMUNICATIONS, INC.
By: /s/ XxXxx X. Xxxxxxx, Xx.
-----------------------------
Name: XxXxx X. Xxxxxxx, Xx.
Title: Chairman
AERIAL OPERATING COMPANY, INC.
By: /s/ Xxx X. Xxxxxxxxx
----------------------------
Name: Xxx X. Xxxxxxxxx
Title: President
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In addition, this Agreement is signed by the undersigned solely for purposes of
Articles I through II and VIII through X hereof.
VOICESTREAM WIRELESS CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
---------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President - Strategy,
Finance and Development
VOICESTREAM WIRELESS HOLDING
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
-----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: Executive Vice President - Strategy,
Finance and Development
SIGNATURE PAGE TO SETTLEMENT AGREEMENT AND RELEASE,
AMONG SONERA LTD., SONERA CORPORATION U.S.,
TELEPHONE AND DATA SYSTEMS, INC.,
AERIAL COMMUNICATIONS, INC.,
AND AERIAL OPERATING COMPANY, INC.
AND JOINED IN BY VOICESTREAM WIRELESS CORPORATION
AND VOICESTREAM WIRELESS HOLDING CORPORATION
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