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EXHIBIT 10.42
VOTING AGREEMENT
This VOTING AGREEMENT (this "Agreement") is made and entered into as of
this ____ day of ____________, 1999 by and among VoiceStream Wireless
Corporation, a Washington corporation (the "Company"), ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
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"), ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ("JWS"), ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ("TEG"), PN Cellular,
Inc., a Washington corporation ("PN"), ▇▇▇▇▇▇▇ Family Trust, established
November 1, 1990 by JWS and TEG, as settlors f/b/o the settlors' children
("SFT"), ▇▇▇▇▇▇▇ Communications Corporation, a Washington corporation ("SCC";
JWS, TEG, PN, SFT and SCC are hereinafter referred to collectively as
"▇▇▇▇▇▇▇"), GS Capital Partners, L.P., a Delaware limited partnership ("GSCP"),
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P., a Delaware limited partnership ("GS"), ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, L.P., a Delaware limited partnership ("BSF"), ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, 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"); ▇▇▇▇▇▇▇▇▇
Telecommunications PCS (USA) Limited, a British Virgin Islands corporation
("▇▇▇▇▇▇▇▇▇ PCS"); and ▇▇▇▇▇▇▇▇▇ Telecommunications Holdings (USA) Limited, a
British Virgin Islands corporation ("▇▇▇▇▇▇▇▇▇ Holdings"; ▇▇▇▇▇▇▇▇▇ PCS and
▇▇▇▇▇▇▇▇▇ Holdings are hereinafter referred to collectively as "▇▇▇▇▇▇▇▇▇")
(each of H&F, ▇▇▇▇▇▇▇, GSC, Providence and ▇▇▇▇▇▇▇▇▇ are hereinafter referred to
individually as a "Shareholder" and collectively as the "Shareholders").
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R E C I T A L S
WHEREAS, the Company and Western Wireless Corporation, a Washington
corporation ("WWC"), are parties to that certain Agreement and Plan of
Distribution, dated as of ___________, 1999, pursuant to which, among other
things, WWC has agreed, upon the terms and conditions set forth therein, to
distribute the shares of 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 ____ shares of Common Stock, of which ____ 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:
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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.
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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 ▇▇▇▇▇▇▇▇▇ Telecommunications Limited, a
corporation organized under the laws of Hong Kong.
1.18 "▇▇▇▇▇▇▇▇▇" 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 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
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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 is 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 partner of such
Shareholder or (iii) with respect to ▇▇▇▇▇▇▇▇▇, (x) HTL, (y) any Subsidiary of
HTL, or (z) any other entity acceptable to Shareholders (other than ▇▇▇▇▇▇▇▇▇
and its Permitted Affiliate Transferees) holding at least a majority of the
Common Stock owned by all Shareholders (other than ▇▇▇▇▇▇▇▇▇ and its Permitted
Affiliate Transferees) in which HTL owns, directly or indirectly, more than 40%
of the outstanding voting power, and (d) in the case of any Person referred to
in clause (x), (y) or (z), ▇▇▇▇▇▇▇▇▇. 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.
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1.31 "Spin-Off" has the meaning given in the recitals.
1.32 "SSF" has the meaning given in the preamble.
1.33 "▇▇▇▇▇▇▇" 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.
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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 ___________, 1999, by
and among certain shareholders of the Company."
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 control, whether in the capacity
of a stockholder, director or member of a board
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committee of the Company or otherwise, and 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, removal and replacement 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 ▇▇▇▇▇▇▇▇▇ (or if ▇▇▇▇▇▇▇▇▇ has Transferred all of its shares of
Common Stock to Permitted Affiliate Transferees of ▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇ (or, if ▇▇▇▇▇▇▇ has Transferred all of its shares of Common
Stock to Permitted Affiliate Transferees of ▇▇▇▇▇▇▇, 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); and (f) three (3)
designees selected by the persons selected as provided above. ▇▇▇▇▇▇▇ (and its
Permitted Affiliate Transferees) agrees with respect to the designee to the
Board selected by the vote of ▇▇▇▇▇▇▇ 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
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Stock, (ii) ▇▇▇▇▇▇▇ 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, ▇▇▇▇▇▇▇ (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 ▇▇▇▇▇▇▇ (and its Permitted
Affiliate Transferees) for one designee of Providence (and its Permitted
Affiliate Transferees). In addition, ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇'▇ aggregate Percentage
Ownership exceeds each of the following thresholds: 27.25%, 33.33%, 38.5%,
42.9%, 46.67% and 50%.
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 have 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 have 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 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
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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 their respective Permitted Affiliate
Transferees) agrees to vote its shares of Common Stock, or shall otherwise take
any action as is necessary, desirable or appropriate, so as to cause the
election 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 ▇▇▇▇▇▇▇ 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
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(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 ▇▇▇▇▇▇▇▇▇ (and its Permitted Affiliate
Transferees) shall cease to Beneficially Own at least (i) 9,800,000 shares of
Common Stock, then in such event ▇▇▇▇▇▇▇▇▇ (or, if ▇▇▇▇▇▇▇▇▇ has Transferred all
of its shares of Common Stock to Permitted Affiliate Transferees of ▇▇▇▇▇▇▇▇▇,
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, ▇▇▇▇▇▇▇▇▇ (or, if ▇▇▇▇▇▇▇▇▇ has Transferred all of its shares of Capital
Stock to Permitted Affiliate Transferees of ▇▇▇▇▇▇▇▇▇, its Permitted Affiliate
Transferees) shall not be entitled to designate any member of the Board. In
addition, if ▇▇▇▇▇▇▇▇▇ 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 ▇▇▇▇▇▇▇▇▇ (and its Permitted Affiliate Transferees)
shall be less than the Percentage Ownership entitling ▇▇▇▇▇▇▇▇▇ to such
additional director(s), then in such event ▇▇▇▇▇▇▇▇▇ (or, if ▇▇▇▇▇▇▇▇▇ has
Transferred all of its shares of Common Stock to Permitted Affiliate Transferees
of ▇▇▇▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇▇
having the right to
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designate additional director(s) and thereafter ▇▇▇▇▇▇▇▇▇ shall cease to have
the right to so designate such additional director(s), the size of the Board
shall be appropriately reduced.
(e) Notwithstanding anything to the contrary contained in
this Agreement, ▇▇▇▇▇▇▇▇▇'▇ 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 Wireless Corporation, dated February 17,
1998, as amended, among WWC, the Company and ▇▇▇▇▇▇▇▇▇ 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 as in effect immediately
following the date hereof do not, at any time thereafter, conflict in any
respect with the provisions of this Agreement.
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4. Representations and Warranties.
Each of the Company, HFCP II, Orchard, International, JWS, TEG,
PN, SFT, SCC, GS, GSCP, BSF, SSF, Providence and ▇▇▇▇▇▇▇▇▇ 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.
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This Agreement shall terminate upon the earliest to occur of any
of the following events:
(a) Upon agreement by Shareholders 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 reor ganization, 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).
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
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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, except to the extent otherwise
expressly provided in this Agreement, shall be deemed to have been duly given if
delivered by same day or next day courier (guaranteed delivery) or mailed,
registered mail, return receipt requested, or transmitted by telegram, telex or
facsimile (i) if to a Shareholder, at such Shareholder's address appearing below
or at any other address 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 ▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, U.S.A., Tel:
(▇▇▇) ▇▇▇-▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇; Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, 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 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP,
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇
-▇▇-
▇▇
▇▇▇▇, ▇▇ ▇▇▇▇▇, ▇▇▇, Tel: (▇▇▇) ▇▇▇-▇▇▇▇, Fax: (▇▇▇) ▇▇▇-▇▇▇▇, Attention: ▇▇▇▇▇
▇. ▇▇▇▇▇▇▇. 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.
▇▇▇ ▇▇▇▇▇▇ ▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: (___) ___-____
with a copy to (which shall not constitute notice):
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(b) if to GS, GSCP, BSF or SSF:
c/o Goldman, Sachs & Co.
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇'▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
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17
with a copy to (which shall not constitute notice):
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(c) if to Providence:
c/o Providence Ventures, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to (which shall not constitute notice):
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(d) if to ▇▇▇▇▇▇▇▇▇:
▇▇▇▇▇▇▇▇▇ Telecommunications PCS (USA) Limited
c/o Offshore Incorporations Limited
P.O. Box 957
Offshore Incorporations Centre
Road Town, Tortola
British Virgin Islands
Tel: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
and
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▇▇▇▇▇▇▇▇▇ Telecommunications PCS (USA) Limited
22nd Floor, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇-▇▇▇▇
and
▇▇▇▇▇▇▇▇▇ Telecommunications Holdings (USA) Limited
22nd Floor, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇: ▇▇▇▇▇ ▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇-▇▇▇▇
with a copy to (which shall not constitute notice):
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ LLP
Suite 3907, Asia Pacific Finance ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Tel: (▇▇▇) ▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇▇-▇▇▇▇
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
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19
dividends, stock splits, reverse splits, combinations, recapitalizations and the
like 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 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.
6.9 Obligations Several. The obligations of each of the
Shareholders under this Agreement shall be several with respect to each such
Shareholder.
6.10 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.
-19-
20
6.11 Applicable Law. The validity of this Agreement, its
construction, interpretation and enforcement, and the rights of the parties
hereunder, shall be determined under, governed by and construed in accordance
with the internal laws of the State of Washington 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.
6.12 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"). Each party shall appoint one arbitrator within 30 days after
giving or receiving notice of the submission of a Dispute to arbitration. The
two arbitrators appointed by the parties shall appoint the third arbitrator. If
a party does not appoint an arbitrator within such designated period, or if the
two appointed arbitrators fail to appoint a third arbitrator within 30 days
after their appointment, the relevant appointment shall be made by the 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
-20-
21
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
-21-
22
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.
(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
-22-
23
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.
6.13 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.
6.14 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.
6.15 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.
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24
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:
-------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS PCS
(USA) LIMITED
By:
-------------------------------
Name:
Title:
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS
HOLDINGS (USA) LIMITED
By:
-------------------------------
Name:
Title:
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ CAPITAL PARTNERS
II, L.P., a California limited partnership
By: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Investors, L.P., its
general partner
By: ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Investors, Inc.,
its general partner
By:
-------------------------------
Name:
Title:
-24-
25
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:
-----------------------------
Name:
Title: Vice president
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:
-----------------------------------
Name:
Title:
---------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
PN CELLULAR, INC.
By:
-------------------------------
Name:
Title:
-25-
26
▇▇▇▇▇▇▇ FAMILY TRUST
By:
-------------------------------
Name: , Trustee
▇▇▇▇▇▇▇ COMMUNICATIONS CORPORATION
By:
-------------------------------
Name:
Title:
THE ▇▇▇▇▇▇▇ SACHS GROUP, L.P.
By:
-------------------------------
Name:
Title:
GS CAPITAL PARTNERS, L.P.
By: GS Advisors L.P., General Partner
By: GS Advisors, Inc., General Partner
By:
-------------------------------
Name:
Title:
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇.▇.
By: Stone Street Performance Corp., Managing
General Partner
By:
-------------------------------
Name:
Title:
-26-
▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, L.P.
By: Stone Street Performance Corp., General
Partner
By:
-------------------------------
Name:
Title:
PROVIDENCE MEDIA PARTNERS L.P.
By: Providence Media GP Limited Partnership
Its: General Partner
By: Providence Ventures, L.P.
Its: General Partner
By:
-------------------------------
Name:
Title:
-27-
28
VOTING AGREEMENT
BY AND AMONG
VOICESTREAM WIRELESS CORPORATION,
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ CAPITAL PARTNERS II, L.P.,
H&F ORCHARD PARTNERS, L.P., H&F INTERNATIONAL PARTNERS, L.P.,
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
PN CELLULAR, INC., ▇▇▇▇▇▇▇ FAMILY TRUST,
▇▇▇▇▇▇▇ COMMUNICATIONS CORPORATION,
GS CAPITAL PARTNERS, L.P., THE ▇▇▇▇▇▇▇ SACHS GROUP, L.P.,
BRIDGE STREET FUND 1992, L.P., STONE STREET FUND 1992, L.P.,
PROVIDENCE MEDIA PARTNERS L.P.,
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS HOLDINGS (USA) LIMITED,
AND
▇▇▇▇▇▇▇▇▇ TELECOMMUNICATIONS PCS (USA) LIMITED
DATED: _____________, 1999
29
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 "▇▇▇▇▇▇▇▇▇".................................................................. 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 "▇▇▇▇▇▇▇".................................................................... 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
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30
Section Page
------- ----
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
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
- ii -
31
Schedule 1
to
Voting Agreement
No. of Shares
of Common Stock
Name of Shareholder Owned by Shareholders
------------------- ---------------------
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ Capital Partners II, L.P.
H&F Orchard Partners, L.P.
H&F International Partners, L.P.
GS Capital Partners, L.P.
Bridge Street Fund ▇▇▇▇, ▇.▇.
▇▇▇▇▇ ▇▇▇▇▇▇ Fund 1992, L.P.
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ Group, L.P.
PN Cellular, Inc.
▇▇▇▇▇▇▇ Communications Corporation
▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ Family Trust
Providence Media Partners ▇.▇.
▇▇▇▇▇▇▇▇▇ Telecommunications PCS (USA) Limited
▇▇▇▇▇▇▇▇▇ Telecommunications Holdings (USA) Limited