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EXHIBIT 19
▇▇▇▇▇ & CO. AGREEMENT
STOCKHOLDERS AGREEMENT
Stockholders Agreement (this "Agreement"), dated as of August 25,
2000, between ▇▇▇▇▇ & Company Incorporated, a New York corporation
("Stockholder" ), and Deutsche Telekom AG, 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);
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 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.
"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.
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2. Representations; Warranties and Covenants of Stockholder.
Stockholder hereby represents and warrants to DT as follows:
(a) Title. As of the date hereof, Stockholder is the sole record and
beneficial owner of the number of shares of VoiceStream Common Stock set forth
opposite such Stockholder's name on Exhibit A attached hereto (the "Restricted
Shares"). Stockholder is the lawful owner of the Restricted Shares, free and
clear of all liens, claims, charges, security interests or other encumbrances,
except as disclosed on Exhibit A.
(b) Authority. 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 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 Stockholder and constitutes a valid and binding agreement of
Stockholder enforceable against 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 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 term of any agreement,
judgment, injunction, order, decree, federal law or regulation to which
Stockholder is a party or by which Stockholder (or any of its assets) is bound.
3. Restriction on Transfer; Other Restrictions.
(a) Stockholder agrees not to Transfer or agree to Transfer any
Restricted Shares, except as otherwise permitted by this Section 3 or pursuant
to the Merger Agreement, Transfers to any Affiliate of Stockholder 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. For the avoidance of doubt, (i) the restrictions set forth in
this Agreement shall only apply to the Restricted Shares disclosed on Exhibit A
hereto (and DT Securities issued in respect thereof) and shall not apply to any
other securities of VoiceStream or DT owned by Stockholder or any Affiliate,
officer, director or stockholder of Stockholder and (ii) because Stockholder
owns other securities of VoiceStream in addition to the Restricted Shares,
Stockholder shall be deemed to be in compliance with this Agreement as long as
Stockholder complies with this Agreement with respect to any of its 500,000
shares of VoiceStream Common Stock which Stockholder designates as the
Restricted Shares.
(b) From the date hereof until the later of January 1, 2001 and the
date of the VoiceStream Stockholders' Meeting, Stockholder agrees not to
Transfer any Restricted Shares, provided, however, that this Section 3(b) shall
cease to be of any force or effect immediately upon termination of the Merger
Agreement.
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(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, Stockholder may Transfer of the Restricted
Shares only up to 17.5% of such Stockholder's Total Number of Restricted
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, Stockholder agrees not to Transfer any DT
Securities or DT Derivative Securities received by Stockholder on account of
Restricted Shares not otherwise disposed of as permitted by this Agreement.
(e) From the day following the three month anniversary of the
Effective Time, through and including the six month anniversary of the
Effective Time, Stockholder may Transfer only up to 40% of such Stockholder's
Total Number of Restricted Shares.
(f) For the avoidance of doubt, the portions of Stockholder's Total
Number of Restricted Shares permitted to be Transferred pursuant to Section
3(c) and Section 3(e) are (i) separate and not cumulative such that if
Stockholder does not fully utilize the permission to Transfer up to 17.5% of
such Stockholder's Total Number of Restricted Shares pursuant to Section 3(c),
Stockholder shall not be permitted to Transfer more than 40% of such
Stockholder's Total Number of Restricted 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
Restricted Shares" is equal to the number of Restricted Shares disclosed on
Exhibit A hereto. For purposes of Section 3(e), Stockholder's Total Number of
Restricted 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 Total Number of Restricted Shares (determined as if 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) [Reserved.]
(j) 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
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effect, directly or indirectly, any short sales of any Restricted Shares except
in accordance with the limitations of Section 3(c).
(k) 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 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 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. [Reserved.]
5. [Reserved.]
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6. No Solicitation. From and after the date hereof, Stockholder
shall not, nor shall it permit any of its respective Subsidiaries to, nor shall
it authorize or instruct any of its respective officers, directors, members or
employees to, and shall use its reasonable best efforts to cause any investment
banker, financial advisor, attorney, accountants or other representatives
retained by it or any of its respective Subsidiaries not to, directly or
indirectly through another person, on its 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. Stockholder 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,
Stockholder shall not exercise any registration rights, provided that
Stockholder may exercise any registration rights it may have with respect to
securities of VoiceStream other than the Restricted Shares. 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. [Reserved.]
9. [Reserved.]
10. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof.
(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.
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(e) Specific Performance. Stockholder agrees with DT as to itself
that if for any reason 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, Stockholder agrees that, in seeking to enforce this Agreement
against 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 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 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)
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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 Stockholder, at Stockholder's address appearing on Annex A
hereto or at any other address that Stockholder may have provided in
writing to DT,
with copies to:
Wachtell, Lipton, ▇▇▇▇▇ & ▇▇▇▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇
Facsimile: 212-403-2000
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇ White & ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
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(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 25th day of August, 2000.
DEUTSCHE TELEKOM AG
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Head of International Legal Affairs
▇▇▇▇▇ & COMPANY INCORPORATED
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director and Executive
Vice President
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EXHIBIT A
Stockholder Name and Address Number and Description of Restricted
Shares
▇▇▇▇▇ & Company Incorporated 500,000
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Managing Director
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇