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EXHIBIT 20
▇▇▇▇▇ AGREEMENT
STOCKHOLDERS AGREEMENT
Stockholders Agreement (this "Agreement"), dated as of August 16, 2000,
among each of the stockholders listed on the signature page hereto (each, a "
Stockholder" ) and Deutsche Telekom, an Aktiengesellschaft organized and
existing under the laws of the Federal Republic of Germany ("DT").
WHEREAS, VoiceStream Wireless Corporation, a Delaware corporation
("VoiceStream"), and DT have entered into an Agreement and Plan of Merger (the
"Merger Agreement"), dated as of July 23, 2000, providing, among other things,
for the merger of a subsidiary of DT with and into VoiceStream.
WHEREAS, in the Merger Agreement DT has agreed, subject to the
conditions set forth therein, to acquire all of the shares of VoiceStream
Common Stock (as defined below);
WHEREAS, this Agreement is intended to be applicable only to the
Shares (as defined below) identified on Exhibit A hereto;
NOW THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein and in the Merger Agreement, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. Certain Definitions.
(a) For the purposes of this Agreement, all capitalized terms used
but not otherwise defined herein shall have the respective meanings given to
such terms in the Merger Agreement.
(b) For the purposes of this Agreement, the words "beneficially
owned" or "beneficial ownership" shall include, with respect to any securities,
the beneficial ownership by a Stockholder but not any securities owned of
record or beneficially by any Affiliate of a Stockholder. Beneficial ownership
shall not include any shares of VoiceStream other than the Shares (as
hereinafter defined) and shall not include any other shares of VoiceStream or
any options, warrants or other rights to acquire or receive shares of capital
stock of VoiceStream ("Options") owned by (i) ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, the controlling
person of Stockholder or any Affiliate of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇; (ii) any family
member of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇; (iii) any trust for the benefit of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
and/or any member of his family; and (iv) any charitable trust or foundation
established or funded primarily by any of the foregoing.
(c) For purposes of this Agreement, the following terms shall have
the following meanings:
"DT Derivative Securities" means any security convertible into or
exchangeable for DT Securities or the value of which is derived from the value
of DT Securities.
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"DT Securities" means DT Ordinary Shares and DT American Depositary
Shares, each representing the right to receive one DT Ordinary Share.
"Transfer" means, with respect to any security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or constructive sale or other
disposition of such security or the record or beneficial ownership thereof, the
offer to make such a sale, transfer, constructive sale or other disposition,
and each agreement, arrangement or understanding, whether or not in writing, to
effect any of the foregoing. The term "constructive sale" means a short sale
with respect to such security, entering into or acquiring an offsetting
derivative contract with respect to such security, entering into or acquiring a
futures or forward contract to deliver such security or entering into any
transaction that has substantially the same effect as any of the foregoing;
provided, however, that the term "constructive sale" shall not include
transactions involving the purchase and sale of securities tracking a
broad-based stock index excluding the DAX Index.
2. Representations; Warranties and Covenants of Each Stockholder.
Each Stockholder hereby represents and warrants, severally and not jointly, to
DT, solely with respect to itself, as follows:
(a) Title. As of the date hereof, such Stockholder is the sole record
or beneficial owner of the number of shares of VoiceStream Common Stock set
forth opposite such Stockholder's name on Exhibit A attached hereto (with
respect to each Stockholder, such Stockholder's "Shares". Such Stockholder is
the lawful owner of the Shares, free and clear of all liens, claims, charges,
security interests or other encumbrances, except as disclosed on Exhibit A. As
of the date hereof, the Shares constitute all of the capital stock of
VoiceStream owned of record or beneficially by such Stockholder and such
Stockholder does not own of record or beneficially, or have the right to
acquire (whether currently, upon lapse of time, following the satisfaction of
any conditions, upon the occurrence of any event or any combination of the
foregoing) any shares of VoiceStream Common Stock or VoiceStream Preferred
Stock or any other securities convertible into or exchangeable or exercisable
for shares of VoiceStream Common Stock.
(b) Authority. Such Stockholder has full legal power, authority,
legal capacity and right to execute and deliver, and to perform its or his
obligations under, this Agreement. No other proceedings or actions on the part
of such Stockholder are necessary to authorize the execution, delivery or
performance of this Agreement or the consummation of the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by such Stockholder and constitutes a valid and binding agreement of
such Stockholder enforceable against such Stockholder in accordance with its
terms, subject to (i) bankruptcy, insolvency, moratorium and other similar laws
now or hereafter in effect relating to or affecting creditors rights generally
and (ii) general principles of equity (regardless of whether considered in a
proceeding at law or in equity).
(c) Conflicting Instruments. Neither the execution and delivery of
this Agreement nor the performance by such Stockholder of its agreements and
obligations hereunder will result in any breach or violation of, or be in
conflict with or constitute a default under, any
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term of any agreement, judgment, injunction, order, decree, federal law or
regulation to which such Stockholder is a party or by which such Stockholder
(or any of its assets) is bound.
3. Restriction on Transfer; Other Restrictions.
(a) Each Stockholder agrees not to Transfer or agree to Transfer any
Shares, except as otherwise permitted by this Section 3 or pursuant to the
Merger Agreement, Transfers to any Affiliate of the Stockholder or family
member of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ who agrees in writing to be bound by the terms of
this Agreement or Transfers which occur by operation of law if the transferee
remains, or agrees in writing to remain, bound by the terms of this Agreement,
other than, in each case, with DT's prior written consent.
(b) From the date hereof until the later of January 1, 2001 and the
date of the VoiceStream Stockholders' Meeting, each Stockholder agrees not to
Transfer any Shares, provided, however, that this Section 3(b) shall cease to
be of any force or effect immediately upon termination of the Merger Agreement.
(c) From the later of January 1, 2001 and the date of the VoiceStream
Stockholders' Meeting, until the earlier of the Effective Time or the
termination of the Merger Agreement, each Stockholder may Transfer only up to
17.5% of such Stockholder's Total Number of Shares; provided, however, that if
the Effective Time shall not have occurred by July 31, 2001, the percentage
specified in this Section 3(c) shall on August 1, 2001 be increased by 3.75%
and, if the Effective Time shall not have occurred by August 31, 2001, the
percentage specified in this Section 3(c) shall on September 1, 2001 be
increased by an additional 3.75%, for an aggregate amount from and after
September 1, 2001 of 25%.
(d) From the Effective Time through and including the three month
anniversary of the Effective Time, each Stockholder agrees not to Transfer any
DT Securities or DT Derivative Securities.
(e) From the day following the three month anniversary of the
Effective Time, through and including the six month anniversary of the
Effective Time, each Stockholder may Transfer only up to 40% of such
Stockholder's Total Number of Shares, inclusive of any Transfer of any DT
Derivative Securities.
(f) For the avoidance of doubt, the portions of a Stockholder's Total
Number of Shares permitted to be Transferred pursuant to Section 3(c) and
Section 3(e) are (i) separate and not cumulative such that if a Stockholder
does not fully utilize the permission to Transfer up to 17.5% of such
Stockholder's Total Number of Shares pursuant to Section 3(c), such Stockholder
shall not be permitted to Transfer more than 40% of such Stockholder's Total
Number of Shares pursuant to Section 3(e) and (ii) exclusive of any Transfers
permitted by this Agreement which occur at any time after the date hereof and
prior to the end of the periods specified in such Sections.
(g) For purposes of Section 3(c), a Stockholder's "Total Number of
Shares" is equal to the Shares. For purposes of Section 3(e), Stockholder's
Total Number of Shares is equal to the number of DT Securities which the
Stockholder would have been entitled to receive as Merger Consideration in the
Merger in respect of the Initial Number of Shares (determined as if
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all of the Stockholders who have entered into Stockholder Agreements with DT in
connection with the Merger had made a Mixed Election).
(h) The foregoing limitations set forth in Sections 3(c) and (e)
shall not apply to any Transfers pursuant to a tender offer, self tender offer,
exchange offer or other transaction offered generally to holders of DT
Securities and approved or not opposed by DT's Supervisory Board, and
securities subject to a Transfer made pursuant to this Section 3(h) and Section
3(l) shall be deemed continued to be owned by the Stockholder for purposes of
the calculations made under Sections 3(c) and (e).
(i) [Intentionally left blank]
(j) Each Stockholder agrees, prior to the Effective Time, not to
effect, directly or indirectly, or through any arrangement with a third party
pursuant to which such third party may effect, directly or indirectly, any
short sales of any VoiceStream Common Stock, DT Securities or DT Derivative
Securities except in accordance with the limitations of Section 3(c).
(k) Each Stockholder hereby irrevocably waives any rights of
appraisal or rights to dissent from the Merger that such Stockholder may have.
(l) If DT's existing majority shareholders elect to effect a
secondary offering of their DT Securities during the period from the Effective
Time through the first anniversary of the Effective Time pursuant to a
registration statement filed pursuant to the Securities Act, DT shall use its
reasonable best efforts to obtain the agreement of such existing majority
shareholders to include in such offering the maximum amount of DT Securities
acquired pursuant to the Merger by the Stockholder and all other stockholders
who have entered into Stockholder Agreements with DT in connection with the
Merger (the Stockholder and such other stockholders, collectively, the
"Stockholders") which such existing shareholders determine may be included in
such secondary offering without adversely affecting such secondary offering of
the securities being sold by such existing majority shareholders, on such terms
and conditions as such existing majority shareholders deem appropriate.
(m) DT has not entered into and from and after the date hereof will
not enter into, an agreement of the kind described in Section 3(l) above
pursuant to which DT or its current majority shareholders would be requested to
grant registration rights to any third parties in connection with a secondary
offering of DT Securities by such existing majority shareholders, unless such
third parties will not have the right to have any shares included in such
registered offering unless all of the shares requested to be included in such
registered offering by any Stockholders are so included.
(n) If DT acquires any company after the date hereof for
consideration valued at more than $15 billion and, at the time the agreement in
respect of such acquisition by DT is entered into, (i) such company has a
single stockholder who owns 10% or more or a group of stockholders owning in
the aggregate 20% or more of the outstanding voting securities of such company
and (ii) in each case such stockholders are (or at any time within the prior
two years were) directors of or have the right to designate one or more
directors to the Board of Directors of such company or are officers of such
company or such company has any 5% or greater
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stockholders (other than institutional investors) as to whom DT could
reasonably enter into an agreement in support of such acquisition and DT
obtains or could reasonably be expected to obtain the agreement of any such
stockholder or group of stockholders of such company, as the case may be, to
vote for and support the acquisition or to limit its powers of disposition in
connection with the acquisition, the transfer restrictions specified in
Sections 3(a) through (e) shall be revised to reflect the more favorable
treatment of the stockholders of such company or the absence of restrictions,
as the case may be, including the grant or sufferance to exist of registration
rights.
4. [Intentionally left blank]
5. [Intentionally left blank]
6. No Solicitation. From and after the date hereof, the Stockholders
shall not, nor shall they permit any of their respective Subsidiaries to, nor
shall they authorize or instruct any of their respective officers, directors,
members or employees to, and shall use their reasonable best efforts to cause
any investment banker, financial advisor, attorney, accountants or other
representatives retained by them or any of their respective Subsidiaries not
to, directly or indirectly through another person, on their behalf, (i)
solicit, initiate or knowingly encourage (including by way of furnishing
information), or knowingly take any other action designed to facilitate, any
Alternative Transaction, or (ii) participate in any substantive discussions or
negotiations regarding any Alternative Transaction, provided that nothing
herein shall affect the ability of any Stockholder in its capacity as an
officer, director, employee of, or adviser or investment banker to, VoiceStream
to take any action which is permissible under the Merger Agreement.
7. Termination of VoiceStream Voting Agreement and other Agreements
with Stockholders. The VoiceStream Voting Agreement and the Registration Rights
Agreement by and among VoiceStream and certain stockholders of VoiceStream,
dated May 3, 1999, and the Amended and Restated Registration Rights Agreement
by and among Omnipoint Corporation and the other parties named therein, dated
June 29, 1995, shall, in consideration of the undertakings by DT under this
Agreement and the Merger Agreement, be terminated and be of no further force or
effect effective at the Effective Time. Each of the Stockholders agrees that a)
until the earlier of (x) the later of January 1, 2001 and the date of the
VoiceStream Stockholders' Meeting, and (y) the termination of the Merger
Agreement, such Stockholder shall not exercise any registration rights. None of
the agreements so listed shall be amended or modified in a manner inconsistent
with the terms of this Agreement without DT's prior written approval.
8. [Intentionally left blank]
9. [Intentionally left blank]
10. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof.
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(b) Costs and Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall
be paid by the party incurring such expenses.
(c) Invalid Provisions. If any provision of this Agreement shall be
invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
it affecting the remaining provisions of this Agreement.
(d) Execution in Counterparts. This Agreement may be executed in
counterparts transmitted and delivered by facsimile each of which shall be an
original with the same effect as if the signatures hereto and thereto were upon
the same instrument.
(e) Specific Performance. Each Stockholder agrees with DT as to
himself or itself that if for any reason such Stockholder fails to perform any
of his or its agreements or obligations under this Agreement, irreparable harm
or injury to DT would be caused as to which money damages would not be an
adequate remedy. Accordingly, each Stockholder agrees that, in seeking to
enforce this Agreement against such Stockholder, DT shall be entitled, in
addition to any other remedy available at law, equity or otherwise, to specific
performance and injunctive and other equitable relief. The provisions of this
Section 10(e) are without prejudice to any other rights or remedies, whether at
law or in equity, that DT may have against such Stockholder for any failure to
perform any of its agreements or obligations under this Agreement.
(f) Amendments; Termination.
(i) This Agreement, including this Section 10(f), may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto.
(ii) The provisions of this Agreement (other than Section 3) shall
terminate upon the earliest to occur of (A) the consummation of the
Merger, (B) the date that is two (2) years after the date hereof, and (C)
the termination of the Merger Agreement. The provisions of Section 3 of
this Agreement shall terminate when the applicable time period set forth
therein lapses.
(g) Governing Law; Submission and Jurisdiction.
(i) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without giving effect to the
principles of conflicts of laws thereof.
(ii) Each of the parties hereto irrevocably agrees that any legal
action or proceeding with respect to this Agreement or for recognition and
enforcement of any judgment in respect hereof brought by the other party
hereto or its successors or assigns shall be brought and determined only
in the United States District Court for the State of Delaware or, in the
event (but only in the event) that such court does not have subject matter
jurisdiction over such action or proceeding, in the courts of the State of
Delaware. Each of the parties hereto hereby irrevocable submits with
regard to any such action or
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proceeding for itself and in respect to its property, generally and
unconditionally, to the personal jurisdiction of the aforesaid courts.
Each of the parties hereto hereby irrevocably waives, and agrees not to
assert, by way of motion, as a defense, counterclaim or otherwise, in any
action or proceeding with respect to this Agreement, (A) any claim that it
is not personally subject to the jurisdiction of the above-named courts
for any reason other than the failure to serve in accordance with this
Section 10(g)(ii) or that it or its property is exempt or immune from
jurisdiction of any such court or from any legal process commenced in such
courts (whether through service of notice, attachment prior to judgment,
attachment in aid of execution of judgment, execution of judgment or
otherwise), and (B) to the fullest extent permitted by the applicable law,
that (x) the suit, action or proceeding in such court is brought in an
inconvenient forum, (y) the venue of such suit, action or proceeding is
improper and (z) this Agreement, or the subject matter hereof, may not be
enforced in or by such courts. Without limiting the foregoing, each party
agrees that service of process on such party as provided in Section 10(i)
shall be deemed effective service of process on such party.
(h) Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their
respective legal successors (including, in the case of such Stockholder or any
other individual, any executors, administrators, estates, legal representatives
and heirs of such Stockholder or such individual) and permitted assigns;
provided that, except as otherwise provided in this Agreement, no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Agreement.
(i) Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made as of the date of receipt and shall be delivered personally or sent by
overnight courier or sent by telecopy, to the Parties at the following
addresses or telecopy numbers (or at such other address or telecopy number for
a party as shall be specified by like notice):
(i) if to a Stockholder, at such Stockholder's address appearing on
Annex A hereto or at any other address that such Stockholder may have
provided in writing to DT and the other Stockholders,
with copies to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: 212-403-2000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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Fried, Frank, Harris, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇.
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
(ii) if to DT:
Deutsche Telekom AG
140 ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇-Allee
53113 Bonn
Germany
Attention: ▇▇▇▇▇ ▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇-▇▇▇▇▇
with a copy to:
Cleary, Gottlieb, ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(j) Waiver of Immunity. DT agrees that, to the extent that it or any
of its property is or becomes entitled at any time to any immunity on the
grounds of sovereignty or otherwise based upon its status as an agency or
instrumentality of government from any legal action, suit or proceeding or from
setoff or counterclaim relating to this Agreement from the jurisdiction of any
competent court, from service of process, from attachment prior to judgment,
from attachment in aid of execution of a judgment, from execution pursuant to a
judgment or arbitral award, or from any other legal process in any
jurisdiction, it, for itself and its property expressly, irrevocably and
unconditionally waives, and agrees not to plead or claim, any such immunity
with respect to such matters arising with respect to this Agreement or the
subject matter hereof (including any obligation for the payment of money). DT
agrees that the waiver in this provision is irrevocable and is not subject to
withdrawal in any jurisdiction or under any statute, including the Foreign
Sovereign Immunities Act, 28 U.S.C. Section 1602 et seq. The foregoing waiver
shall constitute a present waiver of immunity at any time any action is
initiated against DT with respect to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement as of this 16th day of August, 2000.
DEUTSCHE TELEKOM AG
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Head of International Legal Affairs
AVANCE II
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sole Proprietor
AVANCE III
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Sole Proprietor
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EXHIBIT A
Stockholder Name and Address Number and Description of Shares
Avance Capital II 618,750
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Avance Capital III 309,375
Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
