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Exhibit 23
MADISON DEARBORN AGREEMENT
STOCKHOLDER AGREEMENT
Stockholder Agreement (this "Agreement"), dated as of September
18, 2000, between the stockholder listed on the signature page hereto
("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.
"Shares" means 19.818% of the shares listed on Exhibit A
attached hereto, which are the shares to be earned by the general partners of
Stockholder by reason of their carried interest.
"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
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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 Stockholder.
Stockholder hereby represents and warrants to DT as follows:
(a) Title. As of the date hereof, Stockholder is the sole record
or beneficial owner of the number of shares of VoiceStream Common Stock set
forth opposite Stockholder's name on Exhibit A attached hereto. 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.
(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
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. Notwithstanding anything to the contrary contained in this
Agreement, the restrictions set forth in this Agreement shall not apply to any
shares of VoiceStream, other than the Shares, or any options, warrants or other
rights to acquire or receive shares of capital stock of VoiceStream ("Options")
owned by Stockholder. Other than with respect to the Shares, nothing in this
Agreement shall limit or restrict Stockholder from distributing securities
(including shares of VoiceStream or any other securities received in exchange or
on account of such shares of VoiceStream) to its limited partners free and clear
of any and all restrictions contained herein.
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(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 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, Stockholder may Transfer only up to
17.5% of 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, Stockholder agrees not to Transfer any DT
Securities or DT Derivative Securities received on account of the Shares and 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 Stockholder's Total Number of
Shares, inclusive of any Transfer of any DT Derivative Securities.
(f) For the avoidance of doubt, the portion of 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 Stockholder does
not fully utilize the permission to Transfer up to 17.5% of Stockholder's Total
Number of Shares pursuant to Section 3(c), Stockholder shall not be permitted to
Transfer more than 40% of 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), 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 Stockholder
would have been entitled to receive as Merger Consideration in the Merger in
respect of the Total Number of 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 Stockholder for purposes of the calculations
made under Sections 3(c) and (e).
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(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 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) Stockholder hereby irrevocably waives any rights of appraisal
or rights to dissent from the Merger that 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 Stockholder 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.
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4. [Reserved.]
5. [Reserved.]
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 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 with respect
to the 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.
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(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. Stockholder agrees with DT that if for
any reason Stockholder fails to perform any of 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
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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 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: ▇▇▇-▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
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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
Stockholder Agreement as of this 18th day of September, 2000.
DEUTSCHE TELEKOM AG
By: /s/ ▇▇▇▇▇ ▇▇▇▇
------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇
Title: Head of International Legal
Affairs
MADISON DEARBORN CAPITAL
PARTNERS, LP
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇.
Title: Managing Director
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EXHIBIT A
Stockholder Name and Address Number and Description of Shares
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Madison Dearborn Capital Partners, LP 2,797,931
c/o ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇., Managing Director
Three First ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
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