-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, BQldWEYYqXQOctBFC6fNYsszdEHzvijTf/QUuTmdUSa9rHcCARXsk8/PQ8Yi3gSJ C5x50OEup4QtkR7HUHSs9w== 0000940180-00-000260.txt : 20000307 0000940180-00-000260.hdr.sgml : 20000307 ACCESSION NUMBER: 0000940180-00-000260 CONFORMED SUBMISSION TYPE: SC 13D PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20000306 GROUP MEMBERS: CHEUNG KONG (HOLDINGS) LIMITED GROUP MEMBERS: HUTCHISON TELECOM HOLDINGS (USA) LIMITED GROUP MEMBERS: HUTCHISON TELECOM PCS (USA) LIMITED GROUP MEMBERS: HUTCHISON WHAMPOA LIMITED GROUP MEMBERS: HUTCHISON WHAMPOA LTD /WAV SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: VOICESTREAM WIRELESS CORP /DE CENTRAL INDEX KEY: 0001097609 STANDARD INDUSTRIAL CLASSIFICATION: BLANK CHECKS [6770] IRS NUMBER: 911983600 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D SEC ACT: SEC FILE NUMBER: 005-58637 FILM NUMBER: 561818 BUSINESS ADDRESS: STREET 1: 3650 131ST AVENUE SE STREET 2: SUITE 400 CITY: BELLEVUE STATE: WA ZIP: 98006 BUSINESS PHONE: 4256504600 MAIL ADDRESS: STREET 1: 3650 131ST AVENUE SE STREET 2: SUITE 400 CITY: BELLEVUE STATE: WA ZIP: 98006 FORMER COMPANY: FORMER CONFORMED NAME: VOICESTREAM WIRELESS HOLDING CORP DATE OF NAME CHANGE: 19991025 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: HUTCHISON WHAMPOA LTD /WAV CENTRAL INDEX KEY: 0000933662 STANDARD INDUSTRIAL CLASSIFICATION: UNKNOWN SIC - 0000 [0000] STATE OF INCORPORATION: NY FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D BUSINESS ADDRESS: STREET 1: HUTCHISON HOUSE 22ND FLOOR CITY: HONG KONG STATE: K3 ZIP: 00000 BUSINESS PHONE: 8522128118 MAIL ADDRESS: STREET 1: 22ND FL HUTCHISON HOUSE STREET 2: 10 HARCOURT RD CITY: HONG KONG STATE: K3 ZIP: 00000 FORMER COMPANY: FORMER CONFORMED NAME: HUTCHINSON WHAMPOA LTD /WAV DATE OF NAME CHANGE: 19971204 SC 13D 1 SCHEDULE 13D SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13D Under the Securities Exchange Act of 1934 VoiceStream Wireless Corporation -------------------------------- (Name of Issuer) Common Stock, Par Value $0.001 per share ---------------------------------------- (Title of Class of Securities) 928615103 ------------------------------------ (CUSIP Number) Edith Shih Hutchison Whampoa Limited 22nd Floor, Hutchison House 10 Harcourt Road Hong Kong (852-2128-1188) __________ (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) Copies to: John A. Otoshi Dewey Ballantine LLP Suite 3907, Asia Pacific Finance Tower 3 Garden Road Hong Kong (852-2509-7000) __________ February 25, 2000 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Rule 13d-1(b)(3) or (4), check the following box _____________. SCHEDULE 13D CUSIP NO. 928615103 ----------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON HUTCHISON WHAMPOA LIMITED - Not Applicable - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS WC - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Hong Kong - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER NUMBER OF -0- SHARES ----------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 55,899,252 OWNED BY ----------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING -0- PERSON ----------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH 55,899,252 - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 55,899,252 - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 30.1% - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON HC, CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP NO. 928615103 ----------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED - Not Applicable - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS AF - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER NUMBER OF -0- SHARES ----------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 52,010,364 OWNED BY ----------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING -0- PERSON ----------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH 52,101,364 - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 52,010,364 - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 28.0% - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP NO. 928615103 ----------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON HUTCHISON TELECOMMUNICATIONS HOLDINGS (USA) LIMITED - Not Applicable - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS AF - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION British Virgin Islands - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER NUMBER OF -0- SHARES ----------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY 3,888,888 OWNED BY ----------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING -0- PERSON ----------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH 3,888,888 - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON 3,888,888 - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 2.1% - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON CO - ------------------------------------------------------------------------------ SCHEDULE 13D CUSIP NO. 928615103 ----------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON CHEUNG KONG (HOLDINGS) LIMITED - Not Applicable - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS AF - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Hong Kong - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER NUMBER OF -0- SHARES ----------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY Disclaimed (See 11 below) OWNED BY ----------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING -0- PERSON ----------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH Disclaimed (See 11 below) - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON Cheung Kong expressly disclaims beneficial ownership of the shares beneficially owned by Hutchison Whampoa Limited, Hutchison Telecommunications PCS (USA) Limited and Hutchison Telecommunication Holdings (USA) Limited. - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 30.1% - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON HC, CO - ------------------------------------------------------------------------------ Item 1. Security and Issuer. ------------------- This statement on Schedule 13D relates to the Common Stock, par value $0.001 per share (the "Common Stock"), of VoiceStream Wireless Corporation, a Delaware corporation (the "Issuer"). The Issuer's principal executive office is located at 3650 131st Avenue SE, Bellevue, Washington 98006, U.S.A. Item 2. Identity and Background. ----------------------- This Statement is filed by Hutchison Whampoa Limited, a Hong Kong corporation ("HWL"), on its own behalf and on behalf of Hutchison Telecommunications PCS (USA) Limited, a British Virgin Islands company ("PCS"), an indirect wholly-owned subsidiary of HWL, Hutchison Telecommunications Holdings (USA) Limited, a British Virgin Islands company ("HOLDINGS"), an indirect wholly-owned subsidiary of HWL, and by Cheung Kong (Holdings) Limited, a Hong Kong corporation ("Cheung Kong"), a 49.9% shareholder of HWL. HWL - --- The principal business of HWL is that of investment holding with diversified interests and activities in the following core businesses: ports and related services, telecommunications, property holdings and development, retail, manufacturing and other services, and energy, infrastructure, finance and other investments. The principal business address of HWL is 22nd Floor, Hutchison House, 10 Harcourt Road, Hong Kong. HWL indirectly owns 100% of the issued shares of PCS and HOLDINGS. The principal business of PCS and HOLDINGS is investment holding. HWL's beneficial ownership reported herein is through its interest in PCS and HOLDINGS. The name, business address, citizenship and present principal occupation or employment of each executive officer and director of HWL and the name, principal business and address of any corporation or other organization in which such employment is conducted are set forth on Schedule I hereto and are incorporated herein by reference. During the past five years, neither HWL nor, to the best knowledge of HWL, any of its executive officers and directors has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgement, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. PCS and HOLDINGS - ---------------- HWL indirectly owns 100% of the issued shares of each of PCS and HOLDINGS. The principal business of each of PCS and HOLDINGS is investment holding. The registered office address of each of PCS and HOLDINGS is P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British Virgin Islands. The name, business address, citizenship and present principal occupation or employment of each executive officer and director of each of PCS and HOLDINGS and the name, principal business and address of any corporation or other organization in which such employment is conducted are set forth on Schedule II and Schedule III hereto, respectively, and are incorporated herein by reference. During the past five years, neither PCS and HOLDINGS nor, to the best knowledge of PCS and HOLDINGS, any of their executive officers or directors have been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. Cheung Kong - ----------- The principal business of Cheung Kong is investment holding and project management, real estate property development and investment, real estate agency and management and securities investment. The principal business address of Cheung Kong is 7th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong Kong. Cheung Kong owns 49.9% of the issued shares of HWL and may, pursuant to Rule 13d-3 ("Rule 13d-3") under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), be deemed to control the voting and disposition of the Shares by PCS and HOLDINGS. However, Cheung Kong disclaims beneficial ownership of the Shares and the filing of this statement shall in no way be construed as an admission that Cheung Kong is, for purposes of Section 13(d) or 13(g) of the Exchange Act, the beneficial owner of the Shares. The name, business address, citizenship and present principal occupation or employment of each executive officer and director of Cheung Kong and the name, principal business and address of any corporation or other organization in which such employment is conducted are set forth on Schedule IV hereto and are incorporated herein by reference. During the past five years, neither Cheung Kong nor, to the best knowledge of Cheung Kong, any of its executive officers or directors has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or has been a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. 2 Item 3. Source and Amount of Funds or Other Consideration. ------------------------------------------------- On February 25, 2000, VoiceStream Wireless Corporation, a Washington Corporation ("Old VoiceStream"), Omnipoint Corporation, a Delaware corporation ("Omnipoint") and the Issuer consummated the transactions contemplated by an Agreement and Plan of Merger, dated June 23, 1999, among Old VoiceStream, Omnipoint and the Issuer (the "Merger"), pursuant to which, among other things, (i) each share of Old VoiceStream common stock was converted into one share of Common Stock, and (ii) both Old VoiceStream and Omnipoint became wholly owned subsidiaries of the Issuer. Consequently, each of the 3,888,888 and 19,010,364 shares of Old VoiceStream common stock held by HOLDINGS and PCS, respectively, was converted into one share of Common Stock in the Merger. In connection with the Merger, pursuant to a Securities Purchase Agreement, dated June 23, 1999, among Old VoiceStream, PCS and Omnipoint, on June 23, 1999 and October 1, 1999, PCS purchased an aggregate of 6,250 shares of Series A Non-Voting Convertible Preferred Stock of Omnipoint ("Omnipoint Convertible Preferred Stock") for an aggregate purchase price of $150,000,000. Also in connection with the Merger, pursuant to a Stock Subscription Agreement, dated June 23, 1999, between PCS and the Issuer, on February 25, 2000, PCS purchased an additional 6,772,414 shares of Common Stock for $29 per share and 7,606 shares of the Issuer's 2.5% Junior Convertible Preferred Stock ("Preferred Stock") for $100,000 per share in exchange for the 6,250 shares of Omnipoint Convertible Preferred Stock and $807,000,000 in cash. The 7,606 shares of Preferred Stock are convertible into 26,227,586 shares of Common Stock, based on a conversion price of $29 per share of Common Stock. The source of the funds used in this transaction was the working capital of HWL. Item 4. Purpose of Transaction. ---------------------- HWL, PCS and HOLDINGS currently own the shares of Common Stock and Preferred Stock reported herein for investment purposes only. HWL intends to review from time to time its ownership of such shares and may, depending upon its evaluations of the business and prospects of the Issuer, or such other considerations as it may consider relevant, determine to increase, decrease or dispose of its holdings in the Common Stock and Preferred Stock. Other than as discussed above, the persons filing this Schedule have no plans or proposals that relate to or would result in the acquisition by any person of additional securities of the Issuer, or the disposition of securities of the Issuer; an extraordinary corporate transaction involving the Issuer or any of its subsidiaries; a sale or transfer of a material amount of assets of the Issuer or any of its subsidiaries; a change in the present Board of Directors or management of the Issuer; a material change in the present capitalization or dividend policy of the Issuer; any other material change in the Issuer's business or corporate structure; changes in the Issuer's charter or bylaws or other 3 actions that might impede the acquisition of control of the Issuer by any other person; causing securities of the Issuer to be delisted from a national securities exchange or to cease to be authorized to be quoted in an interdealer quotation system of a registered national securities association; causing securities of the Issuer to be eligible for termination of registration pursuant to Section 12(g)(4) of the Exchange Act, or any other similar action. Item 5. Interest in Securities of the Issuer. ------------------------------------ (a)-(b) HWL, through its ownership of PCS and HOLDINGS, is deemed, for purposes of Rule 13d-3 under the Exchange Act, to be the beneficial owner of 55,899,252 shares of the Common Stock, representing 30.1% of the Common Stock outstanding, and to have shared power over the voting and disposition of such shares. PCS is the beneficial owner of 52,010,364 shares of Common Stock, representing 28.0% of the outstanding Common Stock and has shared power over the voting and disposition of such shares. HOLDINGS is the beneficial owner of 3,888,888 shares of Common Stock, representing 2.1% of the outstanding Common Stock and has shared power over the voting and disposition of such shares. Cheung Kong, through its ownership of 49.9% of the issued shares of HWL, may be deemed to share voting and dispositive power over such shares beneficially owned by HWL, PCS and HOLDINGS, however, pursuant to Rule 13d-4 under the Exchange Act, Cheung Kong expressly disclaims beneficial ownership of such shares. Except as described herein, none of HWL, PCS, HOLDINGS or Cheung Kong nor, to the best knowledge of HWL, PCS, HOLDINGS and Cheung Kong, any executive officer or director of HWL, PCS, HOLDINGS or Cheung Kong (i) beneficially owns any securities of the Issuer as of the date hereof or (ii) has any right as of the date hereof to acquire, directly or indirectly, any beneficial ownership of other securities of the Issuer. Mr. Canning Fok, Group Managing Director of HWL, and Mr. Hans Snook, two of the persons elected to the Issuer's board of directors as nominees designated by PCS, each received on December 31, 1999, options to purchase 939 shares of common stock of Old VoiceStream at an exercise price of $11.32 per share, which become exercisable in four equal annual installments beginning January 1, 2000. In the Merger, such options have been converted into options to acquire the same number of shares of Common Stock on the same terms and conditions. HWL, PCS, HOLDINGS and Cheung Kong expressly disclaim beneficial ownership of any shares of Common Stock issuable on exercise of such options. (c) Except as set forth herein, none of HWL, PCS, HOLDINGS or Cheung Kong nor, to the best knowledge of HWL, PCS, HOLDINGS and Cheung Kong, any executive officer or director of HWL, PCS, HOLDINGS or Cheung Kong has effected any transaction in shares of the Common Stock, or securities convertible into shares of the Common Stock, during the past 60 days. 4 (d) Not applicable. (e) Not applicable. Item 6. Contracts, Arrangements, Understandings or Relationships With Respect --------------------------------------------------------------------- to Securities of the Issuer. --------------------------- The Issuer and certain stockholders of the Issuer, including PCS and HOLDINGS, entered into a voting agreement, dated as of February 25, 2000 (the "Voting Agreement"). The stockholders party to the Voting Agreement have agreed to vote their shares of Common Stock for the election of a board initially consisting of 16 members, subject to adjustments, designated as follows: (i) Mr. John Stanton, as long as he is the chief executive officer of the Issuer; (ii) one member designated by Mr. Stanton, so long as he or entities affiliated with him beneficially own at least 4,500,000 shares of Common Stock; (iii) four members designated by PCS and its affiliated entities, which number of designees shall be subject to increases or decreases depending upon increases or reductions in PCS's percentage ownership of outstanding Common Stock, including shares of Common Stock issuable to PCS upon conversion of the Issuer Preferred Stock (the initial designees of PCS being Canning Fok, Susan Chow, Frank J. Sixt and Hans Snook), provided that PCS will have the right to designate two directors so long as PCS and its affiliated entities own at least 9,800,000 shares of Common Stock and one director so long as PCS and its affiliated entities own at least 4,500,000 shares of Common Stock; (iv) one member designated by The Goldman Sachs Group, Inc. and affiliated entities, so long as the Goldman Sachs entities beneficially own at least 4,500,000 shares of Common Stock; (v) four members who were on the Omnipoint board prior to the Merger and who are selected by Omnipoint to serve during the period from the closing of the Merger until and including the second annual meeting of stockholders of the Issuer taking place after the closing of the Merger (the designees of Omnipoint are initially Douglas G. Smith, Richard L. Fisher, James N. Perry, Jr., and James J. Ross), (vi) one member designated by Sonera Corporation and its affiliated entities, so long as the Sonera entities beneficially own at least 4,500,000 shares of Common Stock; and the remaining members of the board to be selected by a majority of the persons selected as described above. In addition, the Voting Agreement provides that in the event of the consummation of the transactions described in that certain Agreement and Plan of Reorganization, dated as of September 17, 1999 (as the same may be amended from time to time, the "Aerial Reorganization Agreement"), by and among Old VoiceStream, the Issuer, VoiceStream Subsidiary III Corporation, a Delaware corporation ("Merger Sub"), Aerial Communications, Inc., a Delaware corporation ("Aerial"), and Telephone and Data Systems, Inc., a Delaware corporation ("TDS"), pursuant to which, among other things, Merger Sub is to be merged with and into Aerial (such merger, together with the related transactions contemplated by the Aerial Reorganization Agreement, being referred to herein as the "Aerial Reorganization"), then the number of members of the board of directors of the Issuer will be increased to 17, and TDS will be entitled to designate a member so long as TDS owns at least 4,500,000 shares of Common Stock. The Voting Agreement further provides that if TDS owns more than 9,800,000 shares of Common Stock and Sonera owns less than 4,500,000 shares of Common Stock, TDS will 5 be entitled to designate two members to the board of the Issuer, and if Sonera owns more than 9,800,000 shares of Common Stock and TDS owns less than 4,500,000 shares of Common Stock, Sonera will be entitled to designate two members to the board of the Issuer. In addition, on June 23, 1999, PCS, Hutchison Telecommunications Limited, a Hong Kong company, and the Issuer entered into an Investor Agreement whereby, among other things, for a period of five years after the completion of the Merger, beneficial ownership of Common Stock by PCS and its affiliates would not exceed, on a diluted basis, (i) 35% during the first two years after the Merger, or 33% if the aggregate number of outstanding shares of Common Stock exceeds 200,000,000; (ii) 36% during the third year after the Merger; and (iii) 40% during the fourth and fifth years after the Merger. Among other things, this agreement also prohibits PCS and certain of its affiliates from, in certain circumstances, participating in proxy contests, tender offers, exchange offers or other transactions relating to a change of control of the Issuer. Additionally, PCS was granted certain registration rights by the Issuer. The foregoing descriptions of the Voting Agreement and the Investor Agreement, are subject to, and qualified in their entirety by reference to, the Voting Agreement and the Investor Agreement, which are filed as Exhibits 5 and 6 hereto, respectively, and incorporated by reference into this Item 6. Item 7. Material to be Filed as Exhibits. -------------------------------- The documents which have been filed as Exhibits are listed in the Exhibit Index herein. 6 Signature - --------- After reasonable inquiry and to the best of its knowledge and belief, HWL certifies that the information set forth in this Statement with respect to it is true, complete and correct. Date: March 3, 2000 FOR AND ON BEHALF OF HUTCHISON WHAMPOA LIMITED By: /s/ Frank J. Sixt -------------------------------- Name: Frank J. Sixt Title: Director After reasonable inquiry and to the best of its knowledge and belief, PCS certifies that the information set forth in this Statement with respect to it is true, complete and correct. Date: March 3, 2000 FOR AND ON BEHALF OF HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED By: /s/ Frank J. Sixt -------------------------------- Name: Frank J. Sixt Title: Director 7 After reasonable inquiry and to the best of its knowledge and belief, HOLDINGS certifies that the information set forth in this Statement with respect to it is true, complete and correct. Date: March 3, 2000 FOR AND ON BEHALF OF HUTCHISON TELECOMMUNICATIONS HOLDINGS (USA) LIMITED By: /s/ Frank J. Sixt -------------------------------- Name: Frank J. Sixt Title: Director After reasonable inquiry and to the best of its knowledge and belief, Cheung Kong certifies that the information set forth in this Statement with respect to it is true, complete and correct. Date: March 3, 2000 FOR AND ON BEHALF OF CHEUNG KONG (HOLDINGS) LIMITED By: /s/ Frank J. Sixt -------------------------------- Name: Frank J. Sixt Title: Director 8 SCHEDULE I ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address /1a/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- LI Ka-shing Hong Kong Chairman, Hutchison Whampoa Limited 7th Floor, Cheung Kong Center Chairman, Cheung Kong (Holdings) 2 Queen's Road Central Limited Hong Kong LI Tzar Kuoi, Victor Hong Kong Deputy Chairman and Executive Director, 7th Floor, Cheung Kong Center Hutchison Whampoa Limited 2 Queen's Road Central Chairman, Cheung Kong Infrastructure Hong Kong Holdings Limited/2/ Managing Director and Deputy Chairman, Cheung Kong (Holdings) Limited Executive Director, Hongkong Electric Holdings Limited/3/ Director, The Hongkong and Shanghai Banking Corporation Limited (banking), No. 1 Queen's Road Central, Hong Kong LI Tzar Kai, Richard Canadian Deputy Chairman and Executive Director, 38th Floor, Citibank Tower Hutchison Whampoa Limited Citibank Plaza Chairman and Chief Executive, Pacific 3 Garden Road Century Group (investment holding), Central, Hong Kong Chairman, Pacific Century Regional Developments Limited (investment holding), 38th Floor, Citibank Tower, Citibank Plaza, 3 Garden Road, Central, Hong Kong Executive Director, Hongkong Electric Holdings Limited/3/
SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address /1a/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- FOK Kin-ning, Canning British Group Managing Director and Executive Director, Hutchison Whampoa Limited Chairman, Hutchison Telecommunications (Australia) Limited/4/ Chairman, Partner Communications Company Ltd./5/ Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Deputy Chairman, Hongkong Electric Holdings Limited/3/ Non-executive Director, Cheung Kong (Holdings) Limited Director, VoiceStream Wireless Corporation/6/ Director, Global Crossing Ltd./7/ Member of the Supervisory Board, Mannesmann AG/8/ Director, Hutchison Telecommunications Holdings (USA) Limited Director, Hutchison Telecommunications PCS (USA) Limited CHOW WOO Mo Fong, Susan Hong Kong Deputy Group Managing Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Director, Hongkong Electric Holdings Limited/3/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Director, Hutchison Telecommunications Holdings (USA) Limited Director, Hutchison Telecommunications PCS (USA) Limited
2 SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- Frank John SIXT Canadian Group Finance Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Non-executive Director, Cheung Kong (Holdings) Limited Director, Hutchison Telecommunications Holdings (USA) Limited Director, Hutchison Telecommunications PCS (USA) Limited LAI Kai Ming, Dominic Canadian Executive Director, Hutchison Whampoa Limited George Colin MAGNUS British Executive Director, Hutchison Whampoa 7th Floor, Cheung Kong Center Limited 2 Queen's Road Central Chairman, Hongkong Electric Holdings Hong Kong Limited/3/ Deputy Chairman, Cheung Kong (Holdings) Limited Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/
3 SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- KAM Hing Lam Hong Kong Executive Director, Hutchison Whampoa 7th Floor, Cheung Kong Center Limited 2 Queen's Road Central Group Managing Director, Cheung Hong Kong Kong Infrastructure Holdings Limited/2/ Deputy Managing Director, Cheung Kong (Holdings) Limited Executive Director, Hongkong Electric Holdings Limited/3/ Michael David KADOORIE British Non-Executive Director, Hutchison 24th Floor, St. George's Whampoa Limited Building, 2 Ice House Street Chairman, CLP Holdings Limited Central, Hong Kong (investment holding), 147 Argyle Street, Kowloon, Hong Kong Chairman, The Hongkong and Shanghai Hotels Limited (hotel catering and real estate), 8th Floor, St. George's Building, 2 Ice House Street, Central, Hong Kong Chairman, Heliservices (Hong Kong) Limited (provision of helicopter services), 2107 St. George's Building, 2 Ice House Street, Central, Hong Kong LI Fook-wo British Non-Executive Director, Hutchison 1416 Prince's Building Whampoa Limited 10 Chater Road Director, The Bank of East Asia, Hong Kong Limited (banking), No. 10 Des Voeux Road Central, Hong Kong Director, Johnson Electric Holdings Limited (micromotors), Cedar House, 41 Cedar Avenue, Hamilton HM 12, Bermuda
4 SCHEDULE I (continued) ---------- Executive Officers and Directors of ----------------------------------- Hutchison Whampoa Limited ------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- Simon MURRAY British Non-Executive Director, Hutchison Room 2108 Gloucester Tower Whampoa Limited The Landmark Chairman, General Enterprise Management 15 Queen's Road Central Services Limited (investment fund), Hong Kong Room 2108 Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Independent Non-executive Director, Cheung Kong (Holdings) Limited Director, Orient Overseas (International) Limited (shipping), 33rd Floor, Harbour Centre, 25 Harbour Road, Hong Kong OR Ching Fai, Raymond British Non-Executive Director, Hutchison 1 Queen's Road Central Whampoa Limited Hong Kong General Manager, The Hongkong and Shanghai Banking Corporation Limited (banking), 1 Queen's Road Central, Hong Kong Chairman, HSBC Insurance (Asia Pacific) Holdings Limited (Insurance), 40th Floor, Sun Hung Kai Centre, Wanchai, Hong Kong Director, HSBC Investment Bank Asia Limited (investment banking), 1 Queen's Road Central, Hong Kong William SHURNIAK Canadian Non-Executive Director, Hutchison Whampoa Limited Deputy Chairman and Director, Husky Oil Ltd./9/
5 SCHEDULE I (continued) Executive Officers and Directors of ----------------------------------- Hutchinson Whampoa Limited -------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- Peter Alan Lee VINE British Non-Executive Director, Hutchison Suite 1005 World Wide House Whampoa Limited 19 Des Voeux Road Central Director, The Cross Harbour Tunnel Hong Kong Company Limited (tunnel operation), 16th Floor, Ocean Centre, Harbour City, Kowloon, Hong Kong Director, International Maritime Carriers (Holdings) Limited (shipping), 17th Floor, St. George's Building, 2 Ice House Street, Central, Hong Kong Director, Liu Chong Hing Investments Limited (investments), 24 Des Voeux Road Central, Hong Kong Director, Liu Chong Hing Bank Limited (banking), 24 Des Voeux Road Central, Hong Kong WONG Chung Hin British Non-Executive Director, Hutchison 1225 Prince's Building Whampoa Limited 10 Chater Road Director, The Bank of East Asia, Limited Hong Kong (banking), No. 10 Des Voeux Road Central, Hong Kong Director, Hongkong Electric Holdings Limited/3/
6 SCHEDULE II ----------- Executive Officers and Directors of ----------------------------------- Hutchison Telecommunications PCS (USA) Limited ---------------------------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- FOK Kin-ning, Canning British Director, Hutchison Telecommunications PCS (USA) Limited Group Managing Director and Executive Director, Hutchison Whampoa Limited Chairman, Hutchison Telecommunications (Australia) Limited/4/ Chairman, Partner Communications Company Ltd./5/ Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Deputy Chairman, Hongkong Electric Holdings Limited/3/ Non-executive Director, Cheung Kong (Holdings) Limited Director, VoiceStream Wireless Corporation/6/ Director, Global Crossing Ltd./7/ Member of the Supervisory Board, Mannesmann AG/8/ Director, Hutchison Telecommunications Holdings (USA) Limited CHOW WOO Mo Fong, Susan Hong Kong Director, Hutchison Telecommunications PCS (USA) Limited Deputy Group Managing Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Director, Hongkong Electric Holdings Limited/3/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Director, Hutchison Telecommunications Holdings (USA) Limited
SCHEDULE II (continued) Executive Officers and Directors of ----------------------------------- Hutchison Telecommunications PCS (USA) Limited ---------------------------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- -------------------------------- Frank John SIXT Canadian Director, Hutchison Telecommunications PCS (USA) Limited Group Finance Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Non-executive Director, Cheung Kong (Holdings) Limited Director, Hutchison Telecommunications Holdings (USA) Limited KHOO Chek Ngee Singaporean Director, Hutchison Telecommunications 18th Floor, Two Harbourfront, PCS (USA) Limited 22 Tak Fung Street Group Managing Director, Hutchison Hunghom, Kowloon Telecommunications Limited/10/ Hong Kong Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Partner Communications Company Ltd./5/ Director, Hutchison Telecommunications Holdings (USA) Limited Hans Roger SNOOK Canadian Director, Hutchison Telecommunications 50 George Street PCS (USA) Limited London W1H 5RF Group Managing Director, Orange plc/11/ United Kingdom Director, Hutchison Telecommunications Holdings (USA) Limited Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/
2 SCHEDULE II (continued) ----------- Executive Officers and Directors of ----------------------------------- Hutchison Telecommunications PCS (USA) Limited ---------------------------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- --------------------------------- CHAN Ting Yu New Zealand Director, Hutchison Telecommunications 18th Floor, Two Harbourfront, PCS (USA) Limited 22 Tak Fung Street Deputy Group Managing Director, Hunghom, Kowloon Hutchison Telecommunications Limited/10/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Partner Communications Company Ltd./5/ Director, Hutchison Hong Kong Telecommunications Holdings (USA) Limited Kevin RUSSELL British Director, Hutchison Telecommunications 8 Amal Street PCS (USA) Limited Afeq Industrial Park Chief Financial Officer, Partner Rosh Ha'ayin 48103 Communications Company Ltd./5/ Israel Director, Hutchison Telecommunications Holdings (USA) Limited
3 SCHEDULE III ------------ Executive Officers and Directors of ----------------------------------- Hutchinson Telecommunications Holdings (USA) Limited ---------------------------------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- --------------------------------- FOK Kin-ning, Canning British Director, Hutchison Telecommunications Holdings (USA) Limited Group Managing Director and Executive Director, Hutchison Whampoa Limited Chairman, Hutchison Telecommunications (Australia) Limited/4/ Chairman, Partner Communications Company Ltd./5/ Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Deputy Chairman, Hongkong Electric Holdings Limited/3/ Non-executive Director, Cheung Kong (Holdings) Limited Director, VoiceStream Wireless Corporation/6/ Director, Global Crossing Ltd./7/ Member of the Supervisory Board, Mannesmann AG/8/ Director, Hutchison Telecommunications PCS (USA) Limited CHOW WOO Mo Fong, Susan Hong Kong Director, Hutchison Telecommunications Holdings (USA) Limited Deputy Group Managing Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Director, Hongkong Electric Holdings Limited/3/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Director, Hutchison Telecommunications PCS (USA) Limited
SCHEDULE III (continued) ------------------------ Executive Officers and Directors of ----------------------------------- Hutchison Telecommunications Holdings (USA) Limited --------------------------------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address/1a/ Citizenship Each Corporation or Organization - -------------------- ----------- --------------------------------- Frank John SIXT Canadian Director, Hutchison Telecommunications Holdings (USA) Limited Group Finance Director and Executive Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Non-executive Director, Cheung Kong (Holdings) Limited Director, Hutchison Telecommunications PCS (USA) Limited KHOO Chek Ngee Singaporean Director, Hutchison Telecommunications 18th Floor, Two Harbourfront, Holdings (USA) Limited 22 Tak Fung Street Group Managing Director, Hutchison Hunghom, Kowloon Telecommunications Limited/10/ Hong Kong Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Partner Communications Company Ltd./5/ Director, Hutchison Telecommunications PCS (USA) Limited Hans Roger SNOOK Canadian Director, Hutchison Telecommunications 50 George Street Holdings (USA) Limited London W1H 5RF Group Managing Director, Orange plc/11/ United Kingdom Director, Hutchison Telecommunications PCS (USA) Limited Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/
2 SCHEDULE 13D CUSIP NO. 928615103 ----------------- - ------------------------------------------------------------------------------ 1 NAME OF REPORTING PERSON S.S. OR I.R.S. IDENTIFICATION NO. OF ABOVE PERSON CHEUNG KONG (HOLDINGS) LIMITED - Not Applicable - ------------------------------------------------------------------------------ 2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) [_] (b) [X] - ------------------------------------------------------------------------------ 3 SEC USE ONLY - ------------------------------------------------------------------------------ 4 SOURCE OF FUNDS AF - ------------------------------------------------------------------------------ 5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) [_] - ------------------------------------------------------------------------------ 6 CITIZENSHIP OR PLACE OF ORGANIZATION Hong Kong - ------------------------------------------------------------------------------ 7 SOLE VOTING POWER NUMBER OF -0- SHARES ----------------------------------------------------------- 8 SHARED VOTING POWER BENEFICIALLY Disclaimed (See 11 below.) OWNED BY ----------------------------------------------------------- EACH 9 SOLE DISPOSITIVE POWER REPORTING -0- PERSON ----------------------------------------------------------- 10 SHARED DISPOSITIVE POWER WITH Disclaimed (See 11 below.) - ------------------------------------------------------------------------------ 11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON Cheung Kong expressly disclaims beneficial ownership of the shares beneficially owned by Hutchison Whampoa Limited, Hutchison Telecommunications PCS (USA) Limited and Hutchison Telecommunication Holdings (USA) Limited. - ------------------------------------------------------------------------------ 12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES [_] - ------------------------------------------------------------------------------ 13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11) 30.1% - ------------------------------------------------------------------------------ 14 TYPE OF REPORTING PERSON HC, CO - ------------------------------------------------------------------------------ SCHEDULE III (continued) ------------ Executive Officers and Directors of ----------------------------------- Hutchinson Telecommunications Holdings (USA) Limited ---------------------------------------------------- As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address /1a/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- CHAN Ting Yu New Zealand Director, Hutchison Telecommunications 18th Floor, Two Harbourfront, Holdings (USA) Limited 22 Tak Fung Street Deputy Group Managing Director, Hunghom, Kowloon Hutchison Telecommunications Hong Kong Limited/10/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Partner Communications Company Ltd./5/ Director, Hutchison Telecommunications PCS (USA) Limited Kevin RUSSELL British Director, Hutchison Telecommunications 8 Amal Street Holdings (USA) Limited Afeq Industrial Park Chief Financial Officer, Partner Rosh Ha'ayin 48103 Communications Company Ltd./5/ Israel Director, Hutchison Telecommunications PCS (USA) Limited
3 SCHEDULE IV ----------- Executive Officers and Directors of ----------------------------------- Cheung Kong (Holdings) Limited ------------------------------ As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address /1b/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- LI Ka-shing Hong Kong Chairman, Cheung Kong (Holdings) Limited Chairman, Hutchison Whampoa Limited LI Tzar Kuoi, Victor Hong Kong Managing Director and Deputy Chairman, Cheung Kong (Holdings) Limited Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Deputy Chairman and Executive Director, Hutchison Whampoa Limited Executive Director, Hongkong Electric Holdings Limited/3/ Director, The Hongkong and Shanghai Banking Corporation Limited (banking), No. 1 Queen's Road Central, Hong Kong George Colin MAGNUS British Deputy Chairman, Cheung Kong (Holdings) Limited Chairman, Hongkong Electric Holdings Limited/3/ Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hutchison Whampoa Limited KAM Hing Lam Hong Kong Deputy Managing Director, Cheung Kong (Holdings) Limited Group Managing Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hutchison Whampoa Limited Executive Director, Hongkong Electric Holdings Limited/3/
SCHEDULE IV (continued) ----------- Executive Officers and Directors of ----------------------------------- Cheung Kong (Holdings) Limited ------------------------------ As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address /1b/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- HUNG Siu-lin, Katherine Hong Kong Executive Director, Cheung Kong (Holdings) Limited CHUNG Sun Keung, Davy Hong Kong Executive Director, Cheung Kong (Holdings) Limited IP Tak Chuen, Edmond Hong Kong Executive Director, Cheung Kong (Holdings) Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ PAU Yee Wan, Ezra Hong Kong Executive Director, Cheung Kong (Holdings) Limited WOO Chia Ching, Grace U.S.A. Executive Director, Cheung Kong (Holdings) Limited LEUNG Siu Hon Hong Kong Independent Non-executive Director, 502 China Building Cheung Kong (Holdings) Limited 29 Queen's Road Central Solicitor, Messrs. S.H. Leung & Co. Hong Kong (solicitors' firm), 502 China Building, 29 Queen's Road Central, Hong Kong
2 SCHEDULE IV (continued) ----------- Executive Officers and Directors of ----------------------------------- Cheung Kong (Holdings) Limited ------------------------------ As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address /1b/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- FOK Kin-ning, Canning British Non-executive Director, Cheung Kong 22nd Floor, Hutchison House (Holdings) Limited 10 Harcourt Road Chairman, Hutchison Telecommunications Hong Kong (Australia) Limited/4/ Chairman, Partner Communications Company Ltd./5/ Deputy Chairman, Cheung Kong Infrastructure Holdings Limited/2/ Deputy Chairman, Hongkong Electric Holdings Limited/3/ Group Managing Director and Executive Director, Hutchison Whampoa Limited Director, VoiceStream Wireless Corporation/6/ Director, Global Crossing Ltd./7/ Member of the Supervisory Board, Mannesmann AG/8/ Director, Hutchison Telecommunications Holdings (USA) Limited Director, Hutchison Telecommunications PCS (USA) Limited
3 SCHEDULE IV (continued) ----------- Executive Officers and Directors of ----------------------------------- Cheung Kong (Holdings) Limited ------------------------------ As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address /1b/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- Frank John SIXT Canadian Non-executive Director, Cheung Kong 22nd Floor, Hutchison House (Holdings) Limited 10 Harcourt Road Group Finance Director and Executive Hong Kong Director, Hutchison Whampoa Limited Executive Director, Cheung Kong Infrastructure Holdings Limited/2/ Executive Director, Hongkong Electric Holdings Limited/3/ Director, Hutchison Telecommunications (Australia) Limited/4/ Director, Partner Communications Company Ltd./5/ Director, VoiceStream Wireless Corporation/6/ Director, Hutchison Telecommunications Holdings (USA) Limited Director, Hutchison Telecommunications PCS (USA) Limited CHOW Nin Mow, Albert Hong Kong Non-executive Director, Cheung Kong 27th Floor, Henley Building (Holdings) Limited 5 Queen's Road Central Executive Director, Hing Kong Hong Kong Holdings Limited (investment holdings), 27th Floor, Henley Building, 5 Queen's Road Central, Hong Kong YEH Yuan Chang, Anthony Hong Kong Independent Non-executive Director, 26th Floor, Tower A Cheung Kong (Holdings) Limited Regent Centre Honorary Life President, Tai Ping 63 Wo Yi Hop Road Carpets International Ltd. (carpet Kwai Chung manufacturing), 26th Floor, Tower A, Hong Kong Regent Centre, 63 Wo Yi Hop Road, Kwai Chung, Hong Kong
4 SCHEDULE IV (continued) ----------- Executive Officers and Directors of ----------------------------------- Cheung Kong (Holdings) Limited ------------------------------ As of March 3, 2000 -------------------
Present Principal Occupation or Employment, Including Name, Name and Principal Business and Address of Business Address /1b/ Citizenship Each Corporation or Organization - ---------------- ----------- -------------------------------- CHOW Kun Chee, Roland British Independent Non-executive Director, 12th Floor, Prince's Building Cheung Kong (Holdings) Limited Chater Road Solicitor, P.C. Woo & Co. (law firm), Hong Kong 12th Floor, Prince's Building, Chater Road, Hong Kong Simon MURRAY British Independent Non-executive Director, Room 2108 Gloucester Tower Cheung Kong (Holdings) Limited The Landmark Chairman, General Enterprise Management 15 Queen's Road Central Services Limited (investment fund), Hong Kong Room 2108 Gloucester Tower, The Landmark, 15 Queen's Road Central, Hong Kong Non-Executive Director, Hutchison Whampoa Limited Director, Orient Overseas (International) Limited (shipping), 33rd Floor, Harbour Centre, 25 Harbour Road, Hong Kong KWOK Tun-li, Stanley Canadian Independent Non-executive Director, Ste 408-355 Burrard Street Cheung Kong (Holdings) Limited Vancouver, British Columbia Director, Amara International Investment V6C 2G8, Canada Corporation (investment holdings), Ste 408-355 Burrard Street, Vancouver, British Columbia, V6C 2G8, Canada
5 Notes:- 1a. Unless otherwise indicated, the business address of each of the named persons is 22nd Floor, Hutchison House, 10 Harcourt Road, Hong Kong. 1b. Unless otherwise indicated, the business address of each of the named persons is 7th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong Kong. 2. The principal business address of Cheung Kong Infrastructure Holdings Limited is 12th Floor, Cheung Kong Center, 2 Queen's Road Central, Hong Kong. The principal business of Cheung Kong Infrastructure Holdings Limited is the development, investment and operation of infrastructure businesses in Hong Kong, the PRC and the Asia-Pacific Region. 3. The principal business address of Hongkong Electric Holdings Limited is Electric Centre, 28 City Garden Road, North Point, Hong Kong. The principal business of Hongkong Electric Holdings Limited is generation and supply of electricity. 4. The principal business address of Hutchison Telecommunications (Australia) Limited is Level 2, 60 Pacific Highway, St. Leonards NSW 2065, Australia. The principal business of Hutchison Telecommunications (Australia) Limited is telecommunications. 5. The principal business address of Partner Communications Company Ltd. is 8 Amal Street, Afeq Industrial Park, Rosh Ha'ayin 48103, Israel. The principal business of Partner Communications Company Ltd. is cellular mobile telephone services. 6. The principal business address of VoiceStream Wireless Corporation is 3650 131st Avenue SE, Bellevue, Washington 98006, United States of America. The principal business of VoiceStream Wireless Corporation is wireless communications systems. 7. The principal business address of Global Crossing Ltd. is 360 N. Crescent Drive, Beverly Hills, CA 90210, United States of America. The principal business of Global Crossing Ltd. is the provision of fiber optic capacity. 8. The principal business address of Mannesmann AG is Mannesmannufer 2, 40213 Dusseldorf, Germany. The principal business of Mannesmann AG is telecommunications, engineering and automative. 9. The principal business address of Husky Oil Ltd. is 707 8th Avenue S.W., Box 6526, Station D, Calgary, Alberta, Canada, T2P 3G7. The principal business of Husky Oil Ltd. is investment in oil and gas. 10. The principal business address of Hutchison Telecommunications Limited is 18th Floor, Two Harbourfront, 22 Tak Fung Street, Hunghom, Kowloon, Hong Kong. The correspondence address of Hutchison Telecommunications Limited is 22nd Floor, Hutchison House, 10 Harcourt Road, Hong Kong. The principal business of Hutchison Telecommunications Limited is telecommunications. 11. The principal business address of Orange plc is St. James Court, Great Peak Road, Almondsbury Park, Bradley Stoke, Bristol BS1 24QJ, England. The principal business of Orange plc is telecommunications. 2 EXHIBIT INDEX Exhibit No. Description - ----------- ----------- 1. Agreement with respect to filing of Schedule 13D. 2. Agreement and Plan of Plan of Merger, dated as of June 23, 1999, by and among Old VoiceStream, Omnipoint and the Issuer (Incorporated by reference to Exhibit 2.1 to the Old VoiceStream's Current Report on Form 8-K filed with the Securities and Exchange Commission on July 7, 1999). 3. Securities Purchase Agreement, dated as of June 23, 1999, by and among Old VoiceStream, PCS and Omnipoint (Incorporated by reference to Exhibit 10.1 to the Old VoiceStream's Current Report on Form 8-K filed with the Securities and Exchange Commission on July 7, 1999). 4. Stock Subscription Agreement, dated as of June 23, 1999, by and among PCS and the Issuer (Incorporated by reference to Exhibit 4.1 to the Old VoiceStream's Current Report on Form 8-K filed with the Securities and Exchange Commission on July 7, 1999). 5. Voting Agreement, dated as of February 25, 2000, by and among the Issuer, PCS, HOLDINGS and certain other stockholders of the Issuer signatories thereto (Incorporated by reference to Exhibit 10.98 to the Schedule 13D filed with the Securities and Exchange Commission by John W. Stanton and Theresa E. Gillespie on March 3, 2000 with respect to the Issuer). 6. Investor Agreement, dated as of June 23, 1999, by and among the Issuer, PCS and Hutchison Telecommunications Limited, a Hong Kong company. EX-1 2 AGREEMENT EXHIBIT 1 AGREEMENT In accordance with Reg. S. 13d-1(f)(1), each of the undersigned hereby agrees that Hutchison Whampoa Limited shall file on behalf of each of them this Schedule 13D relating to the Common Stock, $0.001 par value, in VoiceStream Wireless Corporation, to which this Agreement is an Exhibit and such statements and amendments thereto as may be required to be filed with the United States Securities and Exchange Commission. Dated: March 3, 2000 FOR AND ON BEHALF OF HUTCHISON WHAMPOA LIMITED By: /s/ Frank J. Sixt ----------------------------- Name: Frank J. Sixt Title: Director FOR AND ON BEHALF OF HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED By: /s/ Frank J. Sixt ----------------------------- Name: Frank J. Sixt Title: Director FOR AND ON BEHALF OF HUTCHISON TELECOMMUNICATIONS HOLDINGS (USA) LIMITED By: /s/ Frank J. Sixt ----------------------------- Name: Frank J. Sixt Title: Director FOR AND ON BEHALF OF CHEUNG KONG (HOLDINGS) LIMITED By: /s/ Frank J. Sixt ----------------------------- Name: Frank J. Sixt 3 EX-6 3 INVESTOR AGREEMENT 06/23/99 EXHIBIT 6 ________________________________________________________________________ INVESTOR AGREEMENT DATED AS OF JUNE 23, 1999, BY AND AMONG HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED, a British Virgin Islands corporation, HUTCHISON TELECOMMUNICATIONS LIMITED, a Hong Kong corporation AND VOICESTREAM WIRELESS HOLDING CORPORATION, a Delaware corporation. ________________________________________________________________________ INVESTOR AGREEMENT This INVESTOR AGREEMENT (this "Agreement") is made as of June 23, 1999, by and between Hutchison Telecommunications PCS (USA) Limited, a British Virgin Islands corporation (the "Investor "), Hutchison Telecommunications Limited, a Hong Kong corporation ("HKL") and VoiceStream Wireless Holding Corporation, a Delaware corporation (the "Company"). WHEREAS, the Investor, Hutchison Telecommunications Limited, a Hong Kong corporation ("HTL"), the owner of 100% of the issued and outstanding share capital of the Investor, and the Company have entered into a Subscription Agreement dated as of June 23, 1999 (the "Subscription Agreement"), pursuant to which the Investor has agreed to purchase from the Company, and the Company has agreed to issue and sell to the Investor, shares of the Company's Common Stock, par value $0.001 per share ("Common Stock") and shares of the Company's 2-1/2% Convertible Junior Preferred Stock, par value $0.001 per share (the "Junior Preferred Stock"), all on the terms and subject to the conditions set forth in the Subscription Agreement. WHEREAS, the Investor and the Company wish to set forth certain agreements concerning the ownership and transfer of shares of Common Stock, and certain other matters as provided herein. NOW, THEREFORE, in consideration of the mutual and dependent promises set forth herein, the Investor hereby agrees with the Company, and the Company hereby agrees with the Investor, as follows 1. EFFECTIVE DATE OF AGREEMENT. --------------------------- This Agreement shall become effective upon the Closing, pursuant to and as defined in the Subscription Agreement (the "Effective Date"). 2. DEFINITIONS. ----------- (a) Unless the context requires otherwise, capitalized terms used but not defined in this Agreement have the meanings given in the Subscription Agreement. (b) As used in this Agreement, the following terms have the respective meanings set forth below (applicable to both the singular and plural forms of such terms): "$" means United States dollars. "Actual Voting Power" means, as of the date of determination, the total number of votes attaching to the outstanding securities entitled to vote for the election of directors of the Company. 1 "Affiliate" shall have the meaning set forth in Rule 12b-2 of the rules and regulations promulgated under the Exchange Act; provided, however, that for purposes of Section 3 of this Agreement, none of the following shall be deemed to be an Affiliate of the Investor, HTL or HWL: (A) (i) the Company, (ii) any Publicly Traded Person, (iii) the Cook Inlet Parties, (iv) any of the members of the Special 13D Groups (any such member, other than Investor or its Affiliates, being a "Special 13D Group Member"), or (v) any person who would be deemed to be a controlling person of HWL under such Rule 12b-2, or (B) any Person who would be an Affiliate of Investor solely because such Person is an Affiliate of any of the Persons referred to in clause (A) of this proviso. "Affiliated Director" means any member of the Board who has been designated by Investor for nomination or appointment as a director of the Company pursuant to a Voting Agreement. "Agreement" means this Investor Agreement, as amended, modified, supplemented or restated from time to time in accordance with the terms hereof. "Beneficially Owned" and "Beneficial Ownership" have the meaning set forth in Rule 13d-3 of the rules and regulations promulgated under the Exchange Act. "Blackout Period" has the meaning given in Section 6(e)(ii). "Board" means the board of directors of the Company. "Change of Control" means (i) the acquisition by any Person or 13D Group of direct or indirect Beneficial Ownership of Voting Securities representing 50% or more of the Total Voting Power, (ii) any merger, consolidation or business combination involving the Company or any material portion of its business, (iii) a sale of all or a substantial portion of the assets of the Company or (iv) a recapitalization, restructuring, liquidation, dissolution or similar extraordinary transaction relating to the Company or any material portion of its business. "Commission" means the United States Securities and Exchange Commission. "Common Stock" means the Company's Common Stock, $0.001, 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. "Company" means VoiceStream Wireless Holding Corporation, a Delaware corporation, and its successors and assigns. "Cook Inlet Parties" means (i) Cook Inlet Western Wireless PV/SS PCS, L.P., (ii) Cook Inlet VoiceStream PCS, LLC, (iii) Cook Inlet VoiceStream II, LLC, (iv) Cook Inlet VoiceStream III, LLC and any similar joint venture in which the Company, Omnipoint, VoiceStream or their Subsidiaries from time to time are principals. 2 "Disqualified Affiliate" means any Affiliate of Investor and any Person that would be an Affiliate of Investor but for clause (A)(ii) and (A)(v) of the proviso to the definition hereunder of Affiliate. "Disinterested Board Approval" means the affirmative vote or written consent of a majority of the Board (excluding Affiliated Directors) then in office. "Exchange Act" means the Securities Exchange Act of 1934, as amended. "HTL" means Hutchison Telecommunications Limited, a corporation organized under the laws of Hong Kong. "HWL" means Hutchison Whampoa Limited, a corporation organized under the laws of Hong Kong. "Imputed Cost of Funds" means LIBOR plus 275 basis points. "Includable Security" means any convertible securities, options, warrants or other rights which are convertible into or exchangeable or exercisable for securities entitled to vote for the election of directors, in later than 60 days, if the effect of excluding the foregoing from the calculation of Voting Securities is to deprive the Company of the protections or to deprive the Investor of the benefits of the provisions of this Agreement to any substantial degree. "Incremental Shares" has the meaning given in Section 3(d)(i). "Investor" means Hutchison Telecommunications PCS (USA) Limited, a British Virgin Islands corporation, and, unless otherwise specified herein or unless the context requires otherwise, includes its successors and all Permitted Affiliate Transferees of the Investor which from time to time hold shares of Voting Securities. "Investor Group" means Investor, HTL, HWL, and any of their respective Affiliates (other than any Affiliates referred to in the proviso to the definition herein of Affiliates). "Investor's Ownership Percentage" has the meaning given in Section 3(a). "Investor Tender Offer" means a bona fide public tender offer subject to the provisions of Regulation 14D when first commenced within the meaning of Rule 14d-2(a) of the rules and regulations under the Exchange Act, by any of the Investor Group (or any 13D Group that includes any of the Investor Group, other than the Special 13D Group) to purchase or exchange for cash or other consideration any Common Stock and which consists of an offer to acquire 100% of the outstanding Common Stock (without regard to Common Stock owned by any of the Investor Group) and is conditioned (which condition may not be waived) on a majority of the shares of outstanding Common Stock held by shareholders other than any of the Investor Group being tendered and not withdrawn with respect to such offer. 3 "Mergers" has the meaning given in that certain Agreement and Plan of Reorganization dated as of June 23, 1999 by and among VoiceStream, the Company and Omnipoint. "NASD" has the meaning given in Section 6(a)(iii). "New Issue Securities" has the meaning given in Section 5(c)(i). "Omnipoint" means Omnipoint Corporation, a Delaware corporation. "Other Shareholders" has the meaning given in Section 6(b)(iii)(A). "Permitted Affiliate Transferee" means, in the case of the Investor, (i) HTL, (ii) any Subsidiary of HTL, (iii) any other entity in which HTL owns, directly or indirectly, more than 40% of the outstanding voting power and of which members of the Investor Group collectively are the largest shareholder, and (iv) in the case of any Person referred to in clause (i), (ii) or (iii), the Investor. "Person" means an individual, partnership, joint-stock company, corporation, trust or unincorporated organization, limited liability company, or a government or agency or political subdivision thereof or any other entity. "Public Sale" means a public offer and sale or other public distribution of securities, including (i) pursuant to an effective registration statement under the Securities Act, (ii) pursuant to Regulation S under the Securities Act and any applicable securities or stock exchange regulations in any non-United States market or stock exchange in which the Common Stock is publicly traded, or (iii) pursuant to an exemption from registration under Rule 144 under the Securities Act. "Publicly Traded Person" means any Person with a class of voting securities (i) listed for trading on a recognized securities exchange and (ii) either (A) having a public float of not less than $25 million or (B) being at least 40% Beneficially Owned by persons other than Affiliates of the Investor. "Registrable Securities" has the meaning given in Section 6(a)(ii). "Registration Expenses" has the meaning given in Section 6(a)(iii). "Representative" has the meaning given in Section 6(b)(iv). "Selling Expenses" has the meaning given in Section 6(a)(iv). "Special 13D Group" means any 13D Group that now or hereafter may exist by virtue of a Voting Agreement. "Standstill Period" has the meaning given in Section 3(b)(i). 4 "Standstill Termination Event" means the date on which the first of the following occurs: (i) the Investor Group Beneficially Owns, in the aggregate, less than ten percent (10%) of the Total Voting Power, (ii) the Investor Group Beneficially Owns, in the aggregate, more than ninety percent (90%) of the Total Voting Power, or (iii) a Terminating Change of Control. "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 and more than 50% of the equity. "Terminating Change of Control" means (i) the acquisition by any Person (other than the Special 13D Group, any other Person bound by this Agreement or any Disqualified Affiliate) of direct or indirect Beneficial Ownership of Voting Securities representing 50% or more of the Total Voting Power, (ii) a sale of all or substantially all of the assets of the Company or (iii) a liquidation or dissolution of the Company. "Third Party Offer" has the meaning given in Section 3(b)(i)(D). "Threshold Percentage" means (a) until the second anniversary of the Effective Date, thirty-five percent (35%), (b) thereafter and until the third anniversary of the Effective Date, thirty-six percent (36%), and (c) thereafter until the fifth anniversary of the Effective Date, forty percent (40.0%). In the event that the Company shall, after the date hereof, have greater than 200 million shares of its Common Stock outstanding (such number to be appropriately adjusted for stock splits, reclassifications, combinations and similar events), the percentage set forth in clause (a) shall be thirty-three percent (33%). The Threshold Percentage shall be calculated as set forth in Section 3(a) below and subject to adjustment as provided below in Section 3(d)(iii). "Total Voting Power" means, as of the date of determination, the total number of votes which may be cast in the election of directors of the Company at any meeting of shareholders of the Company if all Voting Securities then outstanding are present and voted to the fullest extent possible at such meeting, assuming the conversion, exchange or exercise of all then outstanding convertible securities, options, warrants or other rights which, within 60 days of such date, are convertible into or exchangeable or exercisable for securities entitled to vote for the election of directors or which are Includable Securities. "Transfer" means any sale, assignment, pledge, hypothecation, or other transfer, disposition or encumbrance of any interest (and includes an exchange of shares in a merger, consolidation or similar transaction). "Triggering Person" has the meaning given in Section 3(c)(i)(A). "VoiceStream" means VoiceStream Wireless Corporation, a Washington corporation. 5 "Voting Agreement" means a voting or similar agreement to which Investor and either or both of the Company or VoiceStream are party from time to time which provides, among other things, for the voting of securities for the election of directors of VoiceStream or, after the Mergers, the Company. "Voting Security" means, as of the date of determination, the Common Stock of the Company, any other security generally entitled to vote for the election of directors and any outstanding convertible securities, options, warrants or other rights which, within 60 days of such date, are convertible into or exchangeable or exercisable for securities entitled to vote for the election of directors or which are Includable Securities; provided, that Omnipoint's existing 7% Cumulative Convertible Preferred Stock shall not be deemed to be a Voting Security. "13D Group" means any group of persons formed for the purpose of acquiring, holding, voting or disposing of Voting Securities which would be required under Section 13(d) of the Exchange Act, and the rules and regulations promulgated thereunder, to file a statement on Schedule 13D or a Schedule 13G with the Commission as a "person" within the meaning of Section 13(d)(3) of the Exchange Act if such group Beneficially Owned sufficient securities to require such a filing under the Exchange Act. When references herein are to a group under Section 13(d) and not to members of such group, such references shall be deemed to refer to actions of the group acting as such group and not to the individual actions of any members of such group. When a reference is made in this Agreement to a Section, such reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words "include," "includes" or "including" are used in this Agreement, they shall be deemed to be followed by the words "without limitation". The use of a gender herein shall be deemed to include the neuter, masculine and feminine genders whenever necessary or appropriate. Whenever the word "herein," "hereunder" or "hereof" is used in this Agreement, it shall be deemed to refer to this Agreement and not to a particular Section of this Agreement unless expressly stated otherwise. 3. STANDSTILL; NON-COMPETITION. --------------------------- (a) General. For purposes of this Section 3, at any relevant date, the ------- ownership percentage of the Investor Group (the "Investor's Percentage Ownership") and the Threshold Percentage will be calculated after giving effect to: (A) the Common Stock issuable under outstanding options and stock purchase rights, exercisable within 60 days of the date of calculation, granted under the Company's employee stock plans (including pursuant to obligations under employee benefit plans of acquired businesses that are assumed in the acquisitions of such businesses); (B) any issuances of Common Stock pursuant to the Subscription Agreement and the conversion of all outstanding Junior Preferred Stock; and 6 (C) except for Common Stock issuable upon conversion of Omnipoint's existing 7% Cumulative Convertible Preferred Stock, the issuance of Common Stock pursuant to the conversion, exchange or other exercise of any other options, warrants, convertible or exchangeable securities or other rights or instruments carrying the right to acquire Common Stock to the extent that such are convertible, exchangeable or exercisable within 60 days of the date of calculation or are Includable Securities. (b) Standstill Obligations. ---------------------- (i) Limitation. Unless there shall have occurred a Standstill Termination Event, until the fifth anniversary of the date of this Agreement (the "Standstill Period"), except with Disinterested Board Approval, no member of the Investor Group shall, directly or indirectly, (A) acquire or agree to acquire any Voting Securities (except by way of (1) stock splits, stock dividends or other distributions or offerings made available to holders of Common Stock generally, or (2) stock options, warrants or other rights to purchase Voting Securities the acquisition of which by Investor have received Disinterested Board Approval) if, in any such case, the effect of such acquisition would be to increase the Investor's Percentage Ownership to more than the Threshold Percentage; (B) (other than in connection with an actual sale of such securities) exercise any stock options, warrants or other rights to purchase Voting Securities approved by the Board of the Company if, in any such case, the effect of such exercise would be to increase the Investor's Percentage Ownership to more than the Threshold Percentage; (C) solicit proxies with respect to the Voting Securities or become a "participant" in any "election contest" (as such terms are used in Rule 14(a)-11 of Regulation 14A promulgated under the Exchange Act) relating to the election of directors of the Company (it being understood that Purchaser shall not be deemed to be such a participant merely by reason of the membership of any Affiliated Directors on the Board pursuant to the terms of the Voting Agreement); provided, that if any other party (a "Breaching Party") shall be in breach under the Voting Agreement (which breach, in the reasonable judgment of Investor, could likely result in an Affiliated Director not being elected in accordance with the terms of the Voting Agreement), Investor may engage in such activities for the limited purpose of electing the Affiliated Director and, if Investor so elects, for nominees other than the nominees which the Breaching Party otherwise would be entitled to designate under the Voting Agreement; or (D) join a 13D Group (other than the Special 13D Group) with any Person which is not a Disqualified Affiliate or otherwise induce, attempt to induce or in any manner act in concert with any such Person for the purpose of initiating or effectuating a tender offer or exchange offer for any Voting Securities (a "Third 7 Party Offer") or a transaction which would result in a Change of Control (a "Third Party Change of Control"); provided that the provisions of this clause (D) shall not be applicable if any member of a Special 13D Group holding more than 5% of the Voting Securities (other than a member of the Investor Group or a Disqualified Affiliate) shall have engaged in any material respect in any of the activities referred to in this clause (D). (E) either alone or through or with a Disqualified Affiliate, initiate, induce, attempt to induce or in any manner act in concert with any such Person for the purpose of initiating or effectuating a tender or exchange offer or Change of Control; (F) disclose to any Person any intention, plan or arrangement inconsistent with the foregoing; Nothing in this Section 3(b)(i) shall have the effect of (i) precluding a member of the Investor Group from participating in a Third Party Offer or voting or agreeing to vote its shares in favor of a Third Party Change of Control in which the Investor Group and any Disqualified Affiliate would receive consideration on the same basis as is generally available to other holders of Common Stock (assuming for purposes of this sentence that the Junior Preferred Stock has been converted into Common Stock) or (ii) prohibiting the Affiliated Directors (acting in their capacity as such) from (A) participating in discussions with other members of the Board or (B) in meetings of the Board. If any member of the Investor Group makes such an acquisition or exercise that would increase the percentage interest of the Investor Group in the Actual Voting Power to more than the Threshold Percentage, such excess shares shall (for so long as the Actual Voting Power exceeds the Threshold Percentage) be voted in a manner proportionate to shares voted by the shareholders of the Company other than the Investor Group and the Disqualified Affiliates; provided, that if the excess shares shall result from the bad faith actions of the Investor Group or its Affiliates, it shall promptly divest such excess; provided, further, however, that no member of the Investor Group shall be obligated to divest itself of such excess pursuant to this Section 3(b)(i) until such time as such divestment would not subject such member of the Investment Group to liability under Section 16(b) of the Exchange Act or any other applicable provision of Federal or state law. (ii) Recapitalizations, Etc. Notwithstanding Section 3(b)(i), no member of the Investor Group shall be obligated to dispose of any Voting Securities if the aggregate percentage ownership of the Investor Group is increased as a result of (x) a recapitalization of the Company, (y) a repurchase of Voting Securities by the Company, (z) any other action taken by the Company or its Affiliates other than the Investor Group. (iii) Reinstatement of Standstill. If a Standstill Termination Event shall have occurred by virtue of the Investor Group Beneficially Owning less than 10% of the Voting Power and thereafter the Investor Group shall thereafter Beneficially Own more 8 than 10% of the Voting Power, the provisions of this Section 3 shall be deemed to have been reinstated. (c) Exception for Certain Third-Party Acquisitions. ---------------------------------------------- (i) Exception to Standstill Obligation. Notwithstanding Section 3(b)(i), the Investor Group may: (A) acquire Voting Securities without regard to the limitations set forth above but in accordance with Section 3(c)(ii) if at any time any person or 13D Group (other than the Special 13D Group) of persons (such person or persons together with any of their Affiliates, collectively, a "Triggering Person"), directly or indirectly, (x) makes a bona fide offer to acquire, or (y) acquires, Beneficial Ownership of Voting Securities which, if added to the Voting Securities (if any) already Beneficially Owned by such Triggering Person, would represent ownership of Voting Securities greater than the Threshold Percentage; (B) with Disinterested Board Approval, make an Investor Tender Offer during the Standstill Period; and (C) with Disinterested Board Approval, acquire Voting Securities without regard to the limitations set forth above. The Company shall give Investor written notice of the occurrence of any event of the type referred to in clause (A) promptly after it obtains knowledge of such event. (ii) Competing Offers. If an event identified in Section 3(c)(i)(A) occurs and shall not have been withdrawn or terminated, the Investor Group shall be permitted to take such action and make such offers as may be considered to be of the same nature and type of action or offer and for the same resulting number of shares as that which is being taken by the Triggering Person; provided that the Investor Group may only acquire that number of shares which when added to the number of shares already owned by the Investor Group shall not exceed the number of shares acquired or to be acquired (assuming any proposals or offers to purchase have been consummated) by the Triggering Person. In proceeding with any action or offer permitted under this Section 3(c)(ii), the Investor Group shall be permitted to offer more favorable terms such as price, cash versus securities or other such terms as may be consistent with an offer of the same nature and type of consideration as that which is being proposed by the Triggering Person. (iii) No Contesting. If the Investor Group shall take any such action permitted by this Section 3(c), the Company agrees that it shall not in any way (whether by active opposition, Board announcement or otherwise) contest such action, subject in all events to the fiduciary obligations of the Company's Board and officers to the Company's stockholders. 9 (d) Option to Purchase Incremental Shares. ------------------------------------- (i) Incremental Shares. If an event identified in Section 3(c)(i) occurs and as a result the Investor Group acquires Voting Securities which increase the Investor Group's percentage interest in the Actual Voting Power to more than the Threshold Percentage (the "Incremental Shares"), and thereafter the Triggering Person holds Voting Securities representing a percentage of the Total Voting Power less than the Threshold Percentage, then, upon the expiration of the Investor Group's right to dispose of the Incremental Shares as provided in Section 3(d)(ii) below, the Investor Group hereby grants to the Company or a designee selected with Disinterested Board Approval, for a period of ninety (90) days (subject to extension in the event of Investor's exercise of rights under Section 3(d)(ii) below), an option to acquire any Incremental Shares at a price equal to the price paid by the Investor Group for such shares, plus such expenses and costs reasonably necessary to acquire the Incremental Shares and incurred by the Investor Group in acquiring the Incremental Shares (including the Imputed Cost of Funds of the Investor Group of holding the incremental Shares until acquired by the Company or such designee); provided, however, that the Investor Group shall not be obligated to sell any Voting Securities pursuant to this Section 3(d)(i) until such time as such sale would not subject the Investor Group to liability under Section 16(b) of the Exchange Act or any other applicable provision of Federal or state law. (ii) Disposition. In the event that the Investor Group has acquired Incremental Shares from a seller or sellers other than the Company, for a period of sixty (60) days from the date on which the Investor Group holds Incremental Shares, the Investor Group shall have the right to sell such Incremental Shares as follows: (x) to an independent third party in a bona fide transaction or transactions; (y) if Rule 144 is available, into the public market in accordance with the terms of Rule 144; or (z) as provided under both (x) and (y). In the event that the Investor Group elects to dispose of the Incremental Shares as provided in this Section 3(d)(ii), Investor shall provide written notice to the Company of such disposition and the purchase option granted to the Company pursuant to Section 3(d)(i) shall apply only to those Incremental Shares which have not been so disposed of; provided, however, that the Investor Group shall not be obligated to sell any Voting Securities pursuant to this Section 3(d)(ii) until such time as such sale would not subject the Investor Group to liability under Section 16(b) of the Exchange Act or any other applicable provision of Federal or state law. (iii) Adjustment for Failure to Exercise Option. In the event that the Company or its designee fails to exercise its option as provided in Section 3(d)(i), the Threshold Percentage shall be increased to a percentage equal to the percentage of the Actual Voting Power held by the Investor Group upon the expiration of the right to exercise such option by the Company or such designee. (iv) Voting of Incremental Shares. Until the Incremental Shares shall have been disposed as provided in Section 3(d)(ii) and, if applicable, the option of the Company or its designee provided in Section 3(d)(i) shall have expired, the Incremental Shares shall be voted in a manner proportionate to shares voted by the shareholders of the Company other than the Investor Group and the Disqualified Affiliates. 10 (v) No Intentional Circumvention. The Investor shall not attempt to circumvent the provisions of this Section 3(d) by taking any action that would have the effect of extending the periods for which Section 16(b) liability would apply. (e) Non-Competition. During the Standstill Period (or, if sooner, until --------------- the occurrence of a Standstill Termination Event), the Investor Group will not, directly or indirectly, engage in the ownership, operation, control or management of any wireless or wirefree telephony network or business in the United States in competition with the Company, its Subsidiaries and the Cook Inlet Parties; provided that the foregoing restriction will not apply to the ownership of up to 5% of the voting power of any company the voting securities of which are publicly traded. 4. TRANSFER. -------- (a) The Common Stock shall be freely tradable and may be Transferred by the Investor as provided in this Section 4. (b) Provided that it shall have provided prior written notice to the Company, the Investor (and each Permitted Affiliate Transferee) shall have the unrestricted right to Transfer its Common Stock and the rights and obligations hereunder to any Permitted Affiliate Transferee or Disqualified Affiliate (provided that any such Disqualified Associate agrees in writing to be bound by the terms of this Agreement in which case such Disqualified Affiliate shall be deemed to be a Permitted Affiliate Transferee for purposes hereof). (c) The Investor and its Permitted Affiliate Transferees shall also have the right to Transfer shares of Common Stock (but not the rights and obligations hereunder unless otherwise provided herein or with Disinterested Board Approval) to Persons other than Permitted Affiliate Transferees or Disqualified Affiliates of the Investor. (d) The Company agrees to cooperate in all reasonable respects (without any obligation to incur any liability or expense) in connection with any Transfer by the Investor permitted by this Section 4, so as to enable such Transfer to be effected on an optimal basis for tax and other applicable regulatory purposes. 5. ISSUANCE OF COMPANY SECURITIES. ------------------------------ (a) Subject to the provisions of this Section 5, the Board shall have the ability to determine the manner in which the Company shall raise any additional funding. (b) For purposes of this Section 5, the term "equity securities" shall (without duplication of previously issued equity securities in the case of exercise or conversion) mean any equity securities, including any warrants, options or other rights to acquire equity securities or debt securities convertible into equity securities, but shall not include non-voting, non- convertible preferred stock or nominal equity features included in the 11 terms of a debt financing. This Section 5 shall not apply with respect to issuances of the Company's equity securities in connection with (i) a stock dividend, (ii) a merger, amalgamation, acquisition, reclassification or other reorganization in which the then-current shareholders of the Company would continue to be the only shareholders of the Company or which is effected to carry out an acquisition transaction, (iii) the grant or exercise of stock options or other grants or purchases of equity securities of the Company pursuant to any stock option, stock purchase or other employee benefit plan now or hereafter adopted for employees, directors or consultants of the Company or (iv) a bona fide public offering of equity securities. (c) If at any time after the date hereof, the Company proposes to issue equity securities of any kind (except as provided in Section 5(b)), then the Company shall: (i) give Investor written notice setting forth in reasonable detail (A) the designation and all of the terms and provisions of the equity securities proposed to be issued (the "New Issue Securities"), including, where applicable, the voting powers, preferences and relative participating, optional or other special rights, and the qualifications, limitations or restrictions thereof and, if applicable, the dividend rate and maturity; (B) the price and other terms of the proposed sale of such securities; (C) the amount of such securities proposed to be issued; and (D) such other material information as may reasonably be requested in order to evaluate the proposed issuance; and (ii) offer Investor a right to purchase a portion of the New Issue Securities up to the Investor's Percentage Ownership on the terms and conditions stated in such notice. (d) If the Investor wishes to exercise its purchase rights hereunder, it must deliver a written notice to that effect to the Company within 15 days after the date the notice specified in Section 5(c) was delivered by the Company. To the extent that the Company offers two or more securities in units, the Investor must purchase such units as a whole and will not be given the opportunity to purchase only one of the securities making up such units. The Investor must complete the purchase of such New Issue Securities at the same time and in a single closing within five Business Days after the expiration of the 15-day period referred to in the first sentence of this Section 5(d). If the purchase and sale of such New Issue Securities by the Investor is subject to any prior regulatory approval, consent, waiver, notice or like requirement, then provided that the Investor shall promptly make any necessary filings or applications for, and diligently pursue, the satisfaction of such regulatory requirements, the time period during which such purchase and sale must be consummated shall be extended until the earlier of (i) five Business Days after all such regulatory requirements have been satisfied and (ii) 90 days after the expiration of the applicable period set forth above for the completion of a purchase by the Investor, provided, that such 90-day period shall be extended by an additional 90 days upon written request of the Investor, unless the Company shall deliver to the Investor an opinion of counsel experienced in the relevant area of law or regulation that such regulatory requirements cannot be satisfied by the Investor. At the closing of the purchases of the New Issue Securities by the Investor, the Company shall deliver to the Investor, against receipt of the purchase price therefor by cash or certified or bank 12 cashier's check, duly issued certificate or certificates representing the New Issue Securities that the Investor has elected to purchase. (e) Upon the expiration of the offering periods described in the first sentence of Section 5(d), or upon any failure of the Investor to complete the purchase of New Issue Securities in the time required under Section 5(d), the Company will be free to sell such New Issue Securities that the Investor has not elected to purchase (or have failed to purchase within the required time) during the 90 days (or applicable longer period under Section 5(d)) following such expiration (or failure) on terms and conditions per share no more favorable to the purchasers thereof than those offered to the Investor. Any New Issue Securities offered or proposed to be sold by the Company after such 90-day period (or applicable longer period under Section 5(d)) or on more favorable terms and conditions per share to the purchaser must be reoffered to the Investor pursuant to this Section 5. The election by the Investor not to exercise its purchase rights under this Section 5 in any one instance shall not affect its rights as to any subsequent proposed issuance other than the decrease in Investor's Ownership Percentage resulting therefrom. Any sale of such securities by the Company without first giving the Investor the rights described in this Section 5 shall be void and of no force and effect and the Company shall cause any required correction to the registration and transfer books of the Company to be effected. (f) The Company hereby agrees that it shall cause each of its wholly-owned Subsidiaries to comply with the terms of this Section 5 with respect to the issuance of any equity securities by such Subsidiary (except for issuances of stock dividends or in connection with a merger, amalgamation, reclassification or other reorganization resulting in no reduction in the Company's direct or indirect equity interest in such Subsidiary). (g) The Company represents that it has taken all action, and covenants to take all such further action, to ensure that the provisions of Section 203 of the Delaware General Corporation Law shall not be applicable to Investor. The Company shall not adopt a "poison pill" share purchase rights plan (or similar plan) unless any such plan excludes Investor and its Affiliates from the definition of "Acquiring Person" (or similarly exempts Investor and its Affiliates from the application of such plan). Unless there shall have been a Terminating Change of Control or the Investor Group Beneficially Owns in the aggregate less than ten percent (10%) of the Total Voting Power, the Company shall not take any further action not contemplated by this Agreement which is not generally applicable to stockholders of the Company and which has the effect of discriminating against Investor with respect to ownership, voting rights or rights to acquire or Transfer securities of the Company. (h) During the term of this Agreement, the Company shall not issue any equity security (including, without limitation, any Voting Security) which provides the holder(s) thereof with any extraordinary or special voting rights or any right to veto any action of the Company, unless such issuance is approved in writing in advance by an Affiliated Director. Further, the Company shall not consider or approve any such issuance prior to the Effective Date. 13 6. REGISTRATION RIGHTS. ------------------- The Investor shall have the right to have its Registrable Securities (as hereinafter defined) registered under the Securities Act and applicable United States state securities laws in accordance with the express terms of the following provisions. (a) Definitions. As used in this Section 6: ----------- (i) the terms "register," "registered" and "registration" refer to a registration effected by preparing and filing a registration statement in compliance with the Securities Act (and any post-effective amendments filed or required to be filed) and the declaration or ordering of effectiveness of such registration statement; (ii) the term "Registrable Securities" shall mean (A) Common Stock owned by the Investor, HTL or any affiliate of the Investor or HTL as of the date of this Agreement, (B) Common Stock that may be issued to the Investor upon conversion of the Junior Preferred Stock or other securities exchangeable for or convertible into shares of Common Stock, (C) any additional Common Stock acquired by the Investor from the Company, and (D) any Common Stock issued as a dividend or other distribution with respect to, or in exchange for or in replacement of, the Common Stock referred to in clauses (A), (B), (C) and (D) above; (iii) "Registration Expenses" shall mean all expenses incident to the Company's performance of or compliance with its obligations under this Section 6, including, without limitation, all Commission, National Association of Securities Dealers ("NASD") and stock exchange or NASDAQ registration, listing and filing fees and expenses, fees and expenses of compliance with applicable state securities or "blue sky" laws (including, without limitation, reasonable fees and disbursements of counsel for the underwriters in connection with "blue sky" qualifications of Registrable Securities), printing expenses, messenger and delivery expenses, fees and disbursements of counsel for the Company and all independent certified public accountants (including the expenses of any annual audit and "cold comfort" letters required by or incident to such performance and compliance), the fees and disbursements of underwriters customarily paid in connection with secondary registered Public Sales of securities (including the fees and expenses of any "qualified independent underwriter" required by the NASD), the reasonable fees of one U.S. counsel plus, if reasonably required by the Investor, one local counsel retained by the Investor in connection with each such registration pursuant to this Section 6 for purposes of obtaining advice concerning applicable securities laws and securities exchange regulations, review of the registration statement and prospectus and limited due diligence concerning the Company, the reasonable fees and expenses of any special experts retained by the Company in connection with such registration, and fees and expenses of other Persons retained by the Company (but not including any underwriting discounts or commission or transfer taxes, if any, attributable to the sale of Registrable Securities by the Investor); and 14 (iv) "Selling Expenses" shall mean all underwriting discounts and selling commissions applicable to the sale of Registrable Securities and transfer tax, if any, attributable to the sale of Registrable Securities by the Investor. (b) Demand Registration. ------------------- (i) The Investor shall have the right, upon delivery of written notice to the Company (not more than once in any 9-month period) to require the Company to register under the Securities Act such amount of Registrable Securities owned by the Investor as may be specified in such notice in accordance with the procedures set forth in this Section 6(b), provided, that, the Company need effect only eight (8) such demand registrations (in the aggregate for all Persons entitled to the benefit of this provision by virtue of this Agreement) pursuant hereto, provided further, that any such registration demanded by the Investor under this Section 6(b)(i) must be for an amount of Common Stock having an aggregate anticipated sales price of at least $25,000,000. (ii) The rights of the Investor to demand the registration of its Registrable Securities shall continue until (x) all the Registrable Securities owned by it shall have been Transferred to transferees who are not entitled to the registration rights of the Investor hereunder in accordance with the terms hereof or, if earlier, (y) all its remaining Registrable Securities are eligible to be Transferred in Public Sales to U.S. persons in the United States without registration under the Securities Act and without being subject to volume limitations under Rule 144 under the Securities Act, provided, in the case of (y), that there is a public float of the Common Stock equal to at least 15% of the total outstanding shares of Common Stock. (iii) If the Investor shall have demanded a registration of Registrable Securities then the Company will: (A) promptly give written notice of the proposed registration to all other shareholders entitled to piggyback registration rights under Section 6(c) hereof or any other contractual agreement of the Company (the "Other Shareholders") and (B) as soon as practicable, use its best efforts to prepare and file with the Commission and cause to become effective such registration statement as would permit or facilitate the sale and distribution of all the Registrable Securities required to be covered thereby pursuant to the notice delivered by the Investor, together (subject to Section 6(b)(iv) below) with all or such portion of the securities of any Other Shareholders joining in such registration as are specified in written requests received by the Company within ten Business Days after written notice from the Company is delivered under Section 6(b)(iii)(A) above. (iv) The Investor, at its election, shall have the Registrable Securities covered by its request distributed by means of an underwritten public offering with a single or managing underwriter selected by the Company and reasonably acceptable to the Investor. If any Other Shareholders so request, the securities of such Other 15 Shareholders shall be included in the registration and underwriting being effected pursuant to this Section 6(b), subject to this Section 6(b)(iv). The Investor and the Company shall (together with all Other Shareholders proposing to distribute their securities through such underwriting) enter into an underwriting agreement in customary form with the representative of the underwriter or underwriters selected for such underwriting by the Company and reasonably acceptable to the Investor (the "Representative"). Notwithstanding any other provision of this Section 6(b), if the Representative advises the Investor and the Company in writing that (x) marketing factors require a limitation on the number of shares to be underwritten or (y) the inclusion of shares held by officers and directors of the Company in the offering could, in the Representative's best judgment, materially reduce the offering price per share, then, in the case of the preceding clause (x), the Common Stock held by Other Shareholders shall be excluded from such underwriting to the extent so required by such limitations and, in the case of the preceding clause (y), the Common Stock held by officers and directors of the Company shall be excluded from such underwriting to the extent advised by the Representative. If, after the exclusion of such shares, further reductions are required to meet the limitation on the number of shares to be underwritten as advised by the Representative, then the Investor may elect, in its sole discretion, to reduce the number of shares that will be included in the underwriting by it by such number of shares as is necessary to comply with such limitation, but in no event to an amount which is below the minimum amount for a demand registration as provided in Section 6(b)(i). If the Investor does not so elect, then the registration of its shares under Section 6(b)(i) will not proceed and will be terminated without liability to any other Person. If the Representative has not limited the number of Registrable Securities or other securities to be underwritten, the Company may include its securities for its own account in such registration if the Representative so agrees and if the number of Registrable Securities which would otherwise have been included in such registration and underwriting will not thereby be limited. (v) Notwithstanding the foregoing, if the Company shall furnish to the Investor and the Other Shareholders a certificate signed by the President or Chief Executive Officer of the Company stating that, in the good faith judgment of the Board, it would be materially detrimental to the Company and its shareholders for such registration statement to be filed, then the Company shall have the right to defer such filing for a period of not more than 90 days after the delivery of such certificate, provided that the Investor shall not be required to accept such a deferral more than twice in any 12-month period; provided, that notwithstanding the provisions of clause (b)(1) above, the Investor shall have the right to up to two demand registrations within the nine month period following the expiration of such deferral period. (c) Piggyback Registration. ---------------------- (i) If the Company shall determine to register any of its Common Stock either for its own account or for the account of any holder or holders of Common Stock (other than a registration on Form S-8 (or similar or successor form) relating solely to stock option, stock purchase or other employee benefit plans, or a registration on Form S-4 (or similar or successor form), or a registration on any registration form which does 16 not permit secondary sales or does not include substantially the same information as would be required to be included in a registration statement covering the sale of Registrable Securities), the Company will: (A) promptly give to the Investor a written notice thereof (which shall include a list of the jurisdictions in which the Company intends to attempt to qualify such securities under the applicable blue sky or other state securities laws); and (B) subject to Section 6(c)(ii) below, include in such registration (and any related qualification under blue sky laws or other compliance), and in any underwriting involved therein, all the Registrable Securities specified in a written request or requests made by the Investor within fifteen (15) days after the date written notice as described in Section 6(c)(i)(A) above is delivered by the Company. Such written request may specify all or a part of the Registrable Securities. (ii) If the registration of which the Company gives notice is for a Public Sale consisting of an underwritten public offering (in which event the underwriter shall be selected by the Company, in its sole discretion), the Company shall so advise the Investor as a part of the written notice given pursuant to Section 6(c)(i)(A). In such event, the right of the Investor to registration pursuant to this Section 6(c) shall be conditioned upon the Investor's participation in such underwriting and the inclusion of the Investor's Registrable Securities in the underwriting to the extent provided herein. The Investor, if its shares are to be included in such registration, shall (together with the Company and the Other Shareholders distributing their Common Stock through such underwriting) enter into an underwriting agreement in customary form with the Representative. Notwithstanding any other provision of this Section 6(c), if the Representative advises the Investor or the Company in writing that (x) the inclusion of shares held by the officers and directors of the Company in the offering could, in the Representative's best judgment, materially reduce the offering price per share, or (y) that marketing factors require a limitation on the number of shares to be underwritten, then, in the case of the preceding clause (x), the Common Stock held by officers and directors of the Company shall be excluded from such underwriting to the extent so advised by the Representative and, in the case of the preceding clause (y), the number of shares that may be included in the underwriting by the Investor and Other Shareholders requesting inclusion in such registration (but not the Company) shall be reduced, on a pro rata basis (based on the number of shares requested by the Investor and such Other Shareholders to be included in such registration), by such minimum number of shares as is necessary to comply with such limitation. If the Investor disapproves of the terms of any such underwriting, it may elect to withdraw therefrom by written notice to the Company and the Representative, given a reasonable period of time prior to the finalization of the underwriting arrangements. Any Registrable Securities or other securities excluded or withdrawn from such underwriting shall not be included in such registration. If at any time prior to the effective date of the registration statement, the Company shall determine for any reason not to register such securities, the Company may, at its election, give written notice of such determination to the Investor and, thereupon, shall be relieved of 17 its obligation under this Section 6(c) to register any of the Registrable Securities in connection with such registration. (iii) Number and Duration. The Investor shall be entitled to have its shares included in an unlimited number of registrations pursuant to this Section 6(c). The rights of the Investor to registration of its Registrable Securities under this Section 6(c) shall continue until (x) all the Registrable Securities owned by it shall have been Transferred to transferees who are not entitled to the registration rights of the Investor hereunder in accordance with the terms hereof or, if earlier, (y) all its remaining Registrable Securities are already included in an effective resale registration statement on Form S-3 or other appropriate form for continuous or delayed offerings or are eligible to be Transferred in Public Sales to U.S. persons in the United States without registration under the Securities Act and without being subject to volume limitations under Rule 144 under the Securities Act, provided, in the case of (y), that there is a public float of the Common Stock equal to at least 15% of the total outstanding shares of Common Stock. (d) Expenses of Registration. Upon the exercise of registration rights set ------------------------ forth in this Section 6, the Company shall pay all Registration Expenses incurred in connection with any registration, qualification or compliance pursuant to this Section 6, provided, that such expenses shall not include Selling Expenses, which shall be borne by the Investor pro rata on the basis of the number of its shares so registered. (e) Registration Procedures. In the case of each registration effected by ----------------------- the Company pursuant to this Section 6, the Company will keep the Investor advised in writing as to the initiation of each registration and as to the completion thereof. In connection with any offering of Registrable Securities registered pursuant to clause (b) or (c) of this Section 6, at its expense, the Company shall: (i) prepare and file with the Commission, as promptly as practical after receipt of a request for registration pursuant to this Section 6, a registration statement on any form for which the Company then qualifies, and which form shall be available for the sale of the Registrable Securities in accordance with the intended methods of distribution thereof, and use its best efforts to cause such registration statement to become and remain effective as provided herein; provided, that before filing with the Commission a registration statement or prospectus or any amendments or supplements thereto, the Company will (A) furnish to the Investor copies of all such documents proposed to be filed for review and comment and (B) notify the Investor of any stop order issued or threatened by the Commission and take all reasonable actions required to prevent the entry of such stop order or to remove it if entered; (ii) prepare and file with the Commission such amendments and supplements to such registration statement and the prospectus used in connection therewith as may be necessary to keep such registration effective (A) during the ten Business Day period immediately following the date on which such registration statement shall be declared effective, and (B) subject to any obligation of the Investor to refrain from selling or offering to sell any Registrable Securities during a Blackout Period (as defined below), for 120 days after the date of effectiveness or (C) if earlier, until the 18 Investor has completed the distribution described in the registration statement relating thereto (but not before the expiration of the time periods referred to in Section 4(3) of the Securities Act and Rule 174 promulgated thereunder, or any successor provisions, if applicable). The Company shall be entitled to elect that a registration statement not be usable, for a reasonable period of time, but not in excess of one hundred twenty (120) consecutive days (a "Blackout Period"), if the Company determines in good faith that the use of such registration statement or the related prospectus would interfere with any pending financing, acquisition, corporate reorganization or any other material corporate development involving the Company, or any of its Subsidiaries or would require premature disclosure thereof, and the Company promptly gives the Investor written notice of such determination, containing a general statement of the reasons for such postponement or restriction on use and an approximation of the anticipated delay; provided, however, that (x) the Company shall not be entitled to initiate a Blackout Period unless it shall concurrently forbid purchases or sales in the open market by directors, senior executives and other Affiliates of the Company, (y) the aggregate number of days included in all Blackout Periods during any consecutive twelve (12) month period shall not exceed two hundred forty (240) days, and (z) the period that the Company shall be required to maintain the effectiveness of the registration statement shall be increased by the aggregate number of days in the Blackout Periods. The Company shall give written notice to each shareholder of record included in the registration statement of the commencement and the termination of any Blackout Period; (iii) furnish to each underwriter, if any, and the Investor such number of copies of such registration statement, each amendment and supplement thereto (in each case including all exhibits thereto), and the prospectus included in such registration statement (including each preliminary prospectus) in conformity with the requirements of the Securities Act, and such other documents incident thereto as the Investor may reasonably request from time to time in order to facilitate the disposition of the Registrable Securities owned by the Investor; (iv) use its best efforts to register or qualify such Registrable Securities under the state securities or "blue sky" laws of such states as the Investor or the Representative reasonably request and do any and all other acts and things that may be reasonably necessary or advisable to enable the Investor and the underwriters to consummate the disposition in such jurisdictions of the Registrable Securities owned by the Investor; provided, that the Company will not be required as a result thereof to (A) qualify generally to do business in any jurisdiction where it would not otherwise be required to qualify but for this clause (iv), (B) subject itself to taxation or regulation of its business in any such jurisdiction in which it would not otherwise be so subject or (C) consent to general service of process in any jurisdiction in which it would not otherwise be subject to general service of process; (v) use its best efforts to cause the Registrable Securities covered by such registration statement to be registered with or approved by such other governmental agencies or authorities as may be necessary by virtue of the business and operations of the Company to enable the Investor to consummate the disposition of such Registrable Securities; 19 (vi) immediately notify the Investor at any time when a prospectus relating thereto is required to be delivered under the Securities Act of the happening of any event that comes to the Company's attention, if as a result of such event the prospectus included in such registration statement contains an untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein not misleading; and subject to the Blackout Period provisions in clause (ii) above, the Company will promptly prepare and furnish to the Investor a supplement or amendment to such prospectus so that, as thereafter delivered to the purchasers of such Registrable Securities, such prospectus will not contain an untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary to make the statements therein not misleading; (vii) use its best efforts to cause all such Registrable Securities to be listed on a national securities exchange in the United States or quoted on the NASDAQ National Market System and listed or quoted on each securities exchange or automated quotation system on which similar securities issued by the Company may then be listed or quoted, and enter into such customary agreements including a listing application and indemnification agreement in customary form, and, subject to applicable law, to provide a transfer agent and registrar for such Registrable Securities covered by such registration statement no later than the effective date of such registration statement; (viii) enter into such customary agreements (including an underwriting agreement or qualified independent underwriting agreement, in each case, in customary form) and take all such other actions as the Investor requesting registration of the Registrable Securities being covered by such registration statement or the underwriter reasonably requests in order to expedite or facilitate the disposition of such Registrable Securities, including customary representations, warranties, indemnities and agreements; (ix) make available (after reasonable notice and execution of customary confidentiality agreements satisfactory to the Company) for inspection, during business hours of the Company, by the Investor or its representatives (if it has requested registration of Registrable Securities) and any underwriter participating in any disposition pursuant to such registration statement (to the extent provided in the applicable underwriting agreement), (collectively, the "Inspectors"), all financial and other records, pertinent corporate documents and properties of the Company and its Subsidiaries, if any, as shall be reasonably necessary to enable them to exercise their due diligence responsibility, and cause the Company's officers, directors and employees, and those of the Company's Affiliates, to supply all information and respond to all inquiries reasonably requested by any such Inspector in connection with such registration statement; (x) use its best efforts to obtain a "cold comfort" letter from the Company's appointed auditors in customary form and covering such matters of the type customarily covered by "cold comfort" letters as the Representative reasonably requests; and 20 (xi) otherwise use its best efforts to comply with all applicable rules and regulations of the Commission and all conditions imposed by relevant governmental authorities or under applicable law and make available to the Investor, as soon as reasonably practicable, an earnings statement covering a period of at least twelve months beginning after the effective date of the registration statement (as the term "effective date" is defined in Rule 158(c) under the Securities Act), which earnings statement shall satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 thereunder. It shall be a condition precedent to the obligation of the Company to take any action with respect to any Registrable Securities that the Investor shall furnish to the Company such information regarding the Registrable Securities and any other securities of the Company held by the Investor and the intended method of disposition of the Registrable Securities held by the Investor and such other information regarding the Investor as the Company shall reasonably request and as shall be required in connection with the action taken by the Company. The Investor agrees that, upon receipt of any notice from the Company of the happening of any event of the kind described in Section 6(e)(vi) hereof, the Investor will forthwith discontinue disposition of Registrable Securities pursuant to any prospectus or registration statement until the Investor's receipt of the copies of the supplemented or amended prospectus contemplated by Section 6(e)(vi) hereof, and, if so directed by the Company (at the Company's expense), the Investor will deliver to the Company all copies (including, without limitation, any and all drafts), other than permanent file copies, then in the Investor's possession, of the prospectus covering such Registrable Securities current at the time of receipt of such notice. (f) Indemnification. --------------- (i) In the event of any registration of any shares of Common Stock under the Securities Act pursuant to this Agreement, the Company will indemnify and hold harmless the Investor, its directors and officers, each Person who participates as an underwriter in the offering or sale of such securities and each other Person, if any, who controls the Investor or any such underwriter within the meaning of the Securities Act against any and all losses, claims, damages and liabilities (or actions in respect thereof), joint or several, and expenses (including any amounts paid in any settlement effected with the Company's consent, which consent will not be unreasonably withheld) to which the Investor, any such director or officer or any such underwriter or controlling Person may become subject under the Securities Act, the Exchange Act, United States state securities or "blue sky" laws, common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) or expenses arise out of or are based upon (A) any untrue statement (or alleged untrue statement) of any material fact contained in any registration statement under which such securities were registered under the Securities Act, any preliminary, final or summary prospectus contained therein, or any amendment or supplement thereto, (B) any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, or (C) any violation (or alleged violation) by the Company of any United States federal, state or common law rule or regulation 21 applicable to the Company and relating to action required of or inaction by the Company in connection with any such registration, qualification or compliance. The Company will reimburse the Investor and each such director, officer, underwriter and controlling Person for any legal and any other expenses reasonably incurred in connection with investigating or defending such claim, loss, damage, liability or action, as such expenses are incurred; provided, however, that the Company shall not be liable in any such case to the extent that any such claim, loss, damage, liability (or action or proceeding in respect thereof) or expense arises out of or is based on any untrue statement (or alleged untrue statement) or omission (or alleged omission) made in such registration statement or amendment or supplement thereto or in any such preliminary, final or summary prospectus in reliance upon and in conformity with written information furnished to the Company by the Investor or any such director, officer, underwriter or controlling Person specifically stating that it is for use therein; provided further, however, that the Company shall not be liable to any of the foregoing indemnitees pursuant to this Section 6(f) with respect to any untrue statement or omission or alleged untrue statement or omission made in any preliminary prospectus or the final prospectus or the final prospectus as amended or supplemented, as the case may be, to the extent that any such loss, claim, damage or liability of such indemnitee results from the fact that the Investor or underwriter sold Registrable Securities (x) to a Person to whom there was not sent or given, at or prior to the written confirmation of such sale, a copy of the final prospectus or of the final prospectus as then amended or supplemented, whichever is most recent, if the Company has previously furnished copies thereof to the Investor or underwriter and such final prospectus, as then amended or supplemented, had corrected any such misstatement or omission or (y) during a Blackout Period or after receipt of a notice pursuant to Section 6(e)(vi) hereof (prior to the amendment or supplement thereunder having been furnished). The indemnity provided for herein shall remain in full force and effect regardless of any investigation made by or on behalf of the Investor or any such director, officer, underwriter or controlling Person and shall survive the transfer of such securities by the Investor or such underwriter. (ii) The Investor will, if Registrable Securities held by it are included in any registration statement filed in accordance with the provisions hereof, (x) indemnify the Company, its directors, officers and controlling Persons, all other prospective sellers, each person who participates as an underwriter, and their respective directors, officers and controlling Persons against all claims, losses, damages and liabilities (or actions in respect thereof) and expenses to which any such Person may become subject under the Securities Act, the Exchange Act, United States state securities or "blue sky" laws, common law or otherwise, insofar as such losses, claims, damages or liabilities (or actions or proceedings in respect thereof) or expenses arise out of or are based upon (A) any untrue statement (or alleged untrue statement) of a material fact with respect to the Investor contained in any such registration statement, preliminary, final or summary prospectus contained therein, or any amendment or supplement thereto, in reliance on and in conformity with written information furnished to the Company by the Investor specifically for use therein, or (B) any omission (or alleged omission) to state therein a material fact with respect to the Investor required to be stated therein or necessary to make the statements made by the Investor therein not misleading and (y) reimburse the 22 Company and its directors, officers, controlling Persons and all other prospective sellers, each person who participates as an underwriter, and their respective directors, officers, and controlling Persons for any legal or any other expenses reasonably incurred in connection with investigating or defending any such claim, loss, damage, liability or action, in the case of both clause (x) and clause (y), to the extent, and only to the extent, that such untrue statement (or alleged untrue statement) or omission (or alleged omission) is made in such registration statement, preliminary, final or summary prospectus contained therein, or any amendment or supplement thereto in reliance upon and in conformity with written information furnished to the Company by the Investor with respect to the Investor specifically for use therein; provided, however, that the obligations of the Investor hereunder shall be limited to an amount equal to the proceeds to be received by the Investor from securities sold by the Investor pursuant to such registration statement or prospectus. The indemnity provided for herein shall remain in full force and effect regardless of any investigation made by or on behalf of the Company or the Investor, the underwriters or any of their respective directors, officers, or controlling Persons and shall survive the transfer of such securities by the Investor and such underwriters. (iii) Each party entitled to indemnification under this Section 6(f) (an "Indemnified Party") shall give notice to the party required to provide indemnification (the "Indemnifying Party") promptly after such Indemnified Party has actual knowledge of any claim as to which indemnity may be sought, and shall permit the Indemnifying Party to assume the defense of any such claim or any litigation resulting therefrom (it being understood that the Indemnifying Party shall not be responsible for more than one counsel for all Indemnified Parties in any single action or claim (or group of related actions or claims), unless the Investor shall have reasonably concluded that it may have a conflict of interest with one or more other Indemnified Parties with respect to any actions or claims). Counsel for the Indemnifying Party, who shall conduct the defense of such claim or any litigation resulting therefrom, shall be approved by the Indemnified Party (whose approval shall not unreasonably be withheld or delayed). The Indemnified Party may participate in such defense at the Indemnified Party's expense (unless the Indemnified Party shall have reasonably concluded that there may be a conflict of interest between the Indemnifying Party and the Indemnified Party in such action, in which case the reasonable fees and expenses of the Indemnified Party's counsel shall be at the expense of the Indemnifying Party and shall be reimbursed as they are incurred). The failure of any Indemnified Party to give notice as provided herein shall not relieve the Indemnifying Party of its obligations under this Section 6 except to the extent the Indemnifying Party is actually materially prejudiced thereby. No Indemnifying Party, in the defense of any such claim or litigation, shall, except with the consent of each Indemnified Party, consent to entry of any judgment or enter into any settlement which does not include as a term thereof the giving by the claimant or plaintiff to such Indemnified Party of an unconditional release from all liability with respect to such claim or litigation. Each Indemnified Party shall promptly furnish such information regarding itself or the claim in question as an Indemnifying Party may reasonably request in writing and as shall be reasonably required in connection with the defense of such claim and litigation resulting therefrom. 23 (iv) In order to provide for just and equitable contribution in circumstances in which the foregoing indemnities provided for in this Section 6(f) are for any reason held to be unenforceable although applicable in accordance with their terms, the Company and the Investor shall contribute to the aggregate losses, liabilities, claims, damages and expenses of the nature contemplated by such indemnities in such proportion as shall be appropriate to reflect (A) the relative benefits received by the Company, on the one hand, and the Investor, on the other hand, from the offering of the Registrable Securities and any other securities included in such offering, and (B) the relative fault of the Company, on the one hand, and the Investor, on the other hand, with respect to the statements or omissions that resulted in such loss, liability, claim, damage or expense, or action in respect thereof, as well as any other relevant equitable considerations; provided, however, that no Person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Securities Act) shall be entitled to a contribution from any Person who was not guilty of such fraudulent misrepresentation. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or omission or alleged omission to state a material fact relates to information supplied by the Company or the Investor, the intent of the parties and their relative knowledge, access to information and opportunity to correct or prevent such statement or omission. The Company and the Investor agree that it would not be just and equitable if a contribution pursuant to this Section 6(f) were to be determined by pro rata allocation or by any other method of allocation that does not take into account the equitable considerations referred to herein. Notwithstanding anything to the contrary contained herein, the Company and the Investor agree that any contribution required to be made by the Investor pursuant to this Section 6(f) shall not exceed the net proceeds from the offering of Registrable Securities (before deducting expenses) received by the Investor with respect to such offering. (v) The foregoing indemnities of the Company and the Investor are subject to the condition that, insofar as they relate to any untrue statement (or alleged untrue statement) of a material fact contained in a preliminary prospectus, or any omission (or alleged omission) to state therein a material fact required to be stated therein or necessary to make the statements contained therein not misleading, which was eliminated or remedied in the amended prospectus on file with the Commission at the time the registration statement in question became effective or the amended prospectus filed with the Commission pursuant to Rule 424(b) under the Securities Act (the "Final Prospectus"), such indemnities shall not inure to the benefit of any underwriter if a copy of the Final Prospectus was furnished to the underwriter and was not furnished to the Person asserting the loss, liability, claim or damage at or prior to the time such action is required by the Securities Act. (g) Information by the Investor. The Investor shall furnish to the Company --------------------------- such information regarding the Investor and the distribution proposed by the Investor as the Company may reasonably request in writing in connection with any registration of Registrable Securities of the Investor and as shall be reasonably required in connection with any registration, qualification or compliance referred to in this Section 6. 24 (h) Rule 144 Reporting. With a view to making available the benefits of ------------------ certain rules and regulations of the Commission which may permit the sale of the restricted securities to the public without registration, the Company agrees to: (A) make and keep public information available as those terms are understood and defined in Rule 144 under the Securities Act, at all times from and after the effective date of the first registration statement under the Securities Act filed by the Company for an offering of its securities to the general public; (B) use its best efforts to file with the Commission in a timely manner all reports and other documents required of the Company under the Securities Act and the Exchange Act at any time after it has become subject to such reporting requirements; and (C) so long as the Investor owns any Registrable Securities, furnish to the Investor upon request a written statement by the Company as to its compliance with the current information requirements of Rule 144 under the Securities Act (at any time from and after the effective date of the first registration statement filed by the Company for an offering of its securities to the general public), a copy of the most recent annual or quarterly report of the Company, and such other reports and documents filed with the Commission pursuant to the reporting requirements of the Exchange Act as the Investor may reasonably request in availing itself of any rule or regulation of the Commission allowing the Investor to sell any such securities without registration. (i) "Market Stand-off" Agreement. ---------------------------- (i) If any registration of Common Stock (or other securities) of the Company shall be in connection with an underwritten public offering, the Investor agrees not to effect any sale or distribution of any Registrable Securities, including any private placement or any sale pursuant to Rule 144A under the Securities Act (or any successor provision) or otherwise or any sale pursuant to Rule 144 under the Securities Act (or any successor provision), other than by pro-rata distribution to its shareholders, partners or other beneficial holders, and not to effect any such sale or distribution of any other equity security of the Company or of any security convertible into or exchangeable or exercisable for any equity security of the Company (in each case, other than as part of such underwritten public offering) during the anticipated ten calendar days prior to, and during the 90 calendar day period (or such other period as may be agreed upon between the Investor and the Representative) that begins on the effective date of such registration statement, without the consent of the Representative; provided, however, that written notice of such registration has been delivered to the Investor at least two Business Days prior to the anticipated beginning of the ten calendar day period referred to above. (ii) If requested by the Representative the Investor shall execute a separate agreement to the foregoing effect. The Company may impose stop-transfer instructions with respect to the shares (or securities) subject to the foregoing restriction until the end of said 90-day or other period. The provisions of this Section 6(i) shall be 25 binding upon any transferee who acquires Registrable Securities, including, without limitation, any Permitted Affiliate Transferee of the Investor, the Investor's shareholders, partners or other beneficial holders, if such transferee is entitled to the registration rights provided hereunder. The Company agrees that any agreement entered into after the date hereof pursuant to which the Company issues or agrees to issue any privately placed equity securities shall contain a provision under which the holders of such securities agree not to effect any sale or distribution of any such securities during the period and in the manner referred to in this Section 6(i)(ii). (iii) If any registration of Registrable Securities shall be in connection with an underwritten public offering, the Company agrees not to effect any Public Sale of any of its equity securities or of any security convertible into or exchangeable or exercisable for any equity security of the Company (other than any such sale or distribution of such securities as part of such public offering, in connection with any amalgamation, merger or consolidation by the Company or any Subsidiary of the Company, the acquisition by the Company or a Subsidiary of the Company of the shares or any assets of any other Person, or in connection with a stock option, stock purchase or other employee benefit plan) during the ten days prior to, and during the 90-day period (or such other period as may be agreed upon between the Company and the Representative) which begins on the effective date of such registration statement without the consent of the Representative. (j) Transfer. If the Investor shall have made a Transfer as permitted by -------- the terms of this Agreement of an amount of Common Stock representing more than 10% of the Actual Voting Power, and unless the Investor shall have agreed otherwise with the transferee of such Transfer (including for this purpose, such transferee's Permitted Affiliate Transferees) (a "Transferee"), both the Investor and the Transferee shall remain entitled, as to the shares of Common Stock owned respectively by each of them, to the demand and piggyback registration rights set forth in this Section 6, which shall survive such Transfer. Unless agreed otherwise, all rights of the Investor under this Section 6 with respect to such shares of Common Stock Transferred shall terminate upon Transfer. 7. MISCELLANEOUS. ------------- (a) Legends. In addition to any other legends required by applicable law, ------- the Company's By-laws or any other agreement restricting the Transfer of the Common Stock, each certificate evidencing the Common Stock acquired by the Investor will bear a legend reflecting the restrictions on the transfer of such shares contained in this Agreement and in the Subscription Agreement. (b) Waiver; Amendments. 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 the Investor. (c) Recapitalization, Exchanges, Etc. The provisions of this Agreement --------------------------------- shall apply to the full extent set forth herein with respect to shares or other securities of the 26 Company that may be issued to the Investor in respect of, in exchange for, or in substitution of the Common Stock. (d) Specific Performance. 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 party hereto agrees that the other party, 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. (e) 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 the Investor, at the Investor's address appearing below or at any other address the Investor may have provided in writing to the Company and (ii) if to the Company, at 3650 131st Avenue S.E., Suite 400, Bellvue, WA 98006, U.S.A., Tel: (425) 586-8014, Fax: (425) 586-8080; Attention: Alan R. Bender, Esq., or such other address as the Company may have furnished to the Investor in writing, with a copy (which shall not constitute notice) to Friedman Kaplan & Seiler LLP, 875 Third Avenue, New York, NY 10022, U.S.A., Tel: (212) 833-1100, Fax: (212) 355-6401; Attention: Barry A. Adelman. 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. The Investor: Hutchison Telecommunications PCS (USA) Limited c/o Offshore Incorporations Limited P.O. Box 957 Offshore Incorporations Centre Road Town, Tortola British Virgin Islands Tel: (809) 494-2233 Fax: (809) 494-4885 27 With a copy (which shall not constitute notice) to: Hutchison Telecommunications PCS (USA) Limited 22nd Floor, Hutchison House 10 Harcourt Road Hong Kong Attention: Edith Shih Tel: (852) 2128-1232 Fax: (852) 2128-1778 and Dewey Ballantine LLP Suite 3907, Asia Pacific Finance Tower Citibank Plaza 3 Garden Road Central, Hong Kong Attention: John A. Otoshi Tel: (852) 2509-7000 Fax: (852) 2509-7088 (f) Successors and Assigns. Except as otherwise provided herein, this ---------------------- Agreement shall inure to the benefit of, and be binding upon, the successors and assigns of each of the parties; provided, however, that this Agreement may not be assigned by any party hereto other than in compliance with the terms hereof. (g) Counterparts. This Agreement may be executed in one or more ------------ counterparts, each of which shall be deemed an original and all of which together shall be considered one and the same agreement. (h) 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. (i) 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 any suit, action or other proceeding arising out of this Agreement shall be brought and litigated in the courts of the State of New York or the United States District Court for the Southern District of New York 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. 28 (j) Section Headings. The headings of the sections and subsections of this ---------------- Agreement are inserted for convenience only and shall not be deemed to constitute a part thereof. (k) 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. (m) 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. (n) 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. (o) HTL. In the event the Investor shall elect to exercise its preemptive --- rights under Section 5, HTL agrees to cause the Investor to perform its obligations under such Section in accordance with their respective terms in connection with any such purchases (including causing or enabling the Investor to make payment). 29 IN WITNESS WHEREOF, the parties hereto have executed this Investor Agreement as of the date first above written. HUTCHISON TELECOMMUNICATIONS PCS (USA) LIMITED /s/ Frank Sixt _________________________________ Name: Frank Sixt Title: Director HUTCHISON TELECOMMUNICATIONS LIMITED /s/ Canning Fok __________________________________ Name: Canning Fok Title: Director VOICESTREAM WIRELESS HOLDING CORPORATION /s/ Donald Guthrie __________________________________ Name: Donald Guthrie Title: Vice Chairman 30 -----END PRIVACY-ENHANCED MESSAGE-----