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Exhibit 10.39
VOTING AND LOCKUP AGREEMENT
This Voting and Lockup Agreement (this "Agreement") dated as
of December 14, 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 ("Purchaser").
1. Certain Definitions. (a) For the purposes of this
Agreement, the following capitalized terms used shall have the respective
meanings given to such terms as follows:
"Affiliate" of a person means a Person that directly or
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, the first mentioned Person.
"Merger Agreement" means that certain Agreement and Plan of
Merger by and among Purchaser, Bega, Inc. and Target dated as of July 23, 2000,
as amended and restated on September 28, 2000.
"Person" means an individual, corporation, partnership,
limited liability company, joint venture, association, joint stock company,
trust, unincorporated organization, entity or group (as defined in the
Securities Exchange Act of 1934, as amended) or a governmental or regulatory
authority.
"Record Date" means the record date established for the Target
Stockholders' Meeting.
"Registration Statement" means one or more registration
statements to be filed with the Securities and Exchange Commission by Purchaser
in connection with the issuance of its securities in the Merger.
"Rights" means any warrants, options or other rights to
acquire or receive shares of Target Common Stock or other voting capital stock
of Target.
"Shares" means any shares of Target Common Stock.
"Subsequent Determination" means a determination by the Board
of Directors of Target not to recommend the approval and adoption of the Merger
Agreement by holders of Target Common Stock.
"Subsidiary" means any Person on the date of determination of
which Target or Purchaser, as the case may be (either alone or through or
together with any other Subsidiary or Subsidiaries), owns, directly or
indirectly, more than fifty percent (50%) of the stock or other equity interests
the holders of which are generally entitled to vote for the election of the
Board of Directors or other governing body of such Person.
"Target" means VoiceStream Wireless Corporation, a Delaware
corporation.
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"Target Common Stock" means a share of common stock, par value
$0.001 per share, of Target.
"Target Stockholders' Meeting" means a meeting of the
stockholders of Target duly convened under Delaware Law following the
effectiveness of the Registration Statement for the purposes of obtaining
approval by the holders of Target Shares of the transactions contemplated by the
Merger Agreement.
"Total Number of Shares" has the meaning set forth in Section
2(c).
"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.
(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 Stockholder and by any direct or
indirect Subsidiary of Stockholder.
(c) All other capitalized terms used but not defined
herein shall have the meanings ascribed to them in the Merger Agreement.
2. Restriction on Transfer; Other Restrictions.
(a) Stockholder agrees not to Transfer or agree to
Transfer any Shares or Rights owned of record or beneficially by Stockholder,
except as otherwise permitted by this Section 2 or pursuant to the Merger
Agreement or Transfers to any Affiliate of Stockholder who agrees in writing to
be bound by the terms of this Agreement, other than with Purchaser's prior
written consent.
(b) From the date hereof until the earlier of January 1,
2001 and the date of the Target Stockholders' Meeting or, if sooner, the
termination of the Merger Agreement, Stockholder may Transfer only up to 49.9%
of Stockholder's Total Number of Shares.
(c) For purposes of Section 2(b), Stockholder's "Total
Number of Shares" is equal to the aggregate number of shares of Target Common
Stock owned of record or beneficially by the Stockholder as a result of the
exercise of exchange rights to acquire shares of Target Common Stock after July
1, 2000.
(d) Stockholder hereby irrevocably waives any rights of
appraisal or rights to dissent from the Merger that Stockholder may have.
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3. Agreement to Vote. (a) Stockholder hereby irrevocably
and unconditionally agrees to vote or to cause to be voted or provide a consent
with respect to all Shares that it owns of record or beneficially as of the
Record Date at the Target Stockholders' Meeting and at any other annual or
special meeting of stockholders of Target or action by written consent where
such matters arise (i) in favor of the Merger and the Merger Agreement and
approval of the terms thereof and (ii) against, and Stockholder will not consent
to, approval of any Alternative Transaction or the liquidation or winding up of
Target. The obligations of Stockholder specified in this Section 3 shall apply
whether or not the Board of Directors of Target makes a Subsequent
Determination.
(b) In furtherance of the agreements contained in Section
3(a) hereof, Stockholder hereby agrees (i) to complete and send the proxy card
received by Stockholder with the Target Proxy Statement, so that such proxy card
is received by Target, as prescribed by the Target Proxy Statement, not later
than the fifth Business Day preceding the day of the Target Stockholders'
Meeting, (ii) to vote, by completing such proxy card but not otherwise, all the
Shares he or it owns of record or beneficially as of the record date for the
Target Stockholders' Meeting (A) in favor of the Merger and the Merger Agreement
and (B) if the opportunity to do so is presented to such Stockholder on the
proxy card, against any Alternative Transaction and (iii) not to revoke any such
proxy.
4. Miscellaneous.
(a) Execution in Counterparts. This Agreement may be
executed in counterparts, each of which shall be an original with the same
effect as if the signatures hereto and thereto were upon the same instrument.
(b) Specific Performance. Stockholder agrees with
Purchaser as to itself that if for any reason Stockholder fails to perform any
of its agreements or obligations under this Agreement, irreparable harm or
injury to Purchaser 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, Purchaser 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 4(b)
are without prejudice to any other rights or remedies, whether at law or in
equity, that Purchaser may have against Stockholder for any failure to perform
any of its agreements or obligations under this Agreement.
(c) Amendments; Termination.
(i) This Agreement, including this Section 4(c),
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 shall
terminate upon the earliest to occur of (A) the consummation of the Merger, (B)
the termination of the Merger Agreement, and (C) except for Section 3 of this
Agreement, January 1, 2001.
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(d) 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 interest.
(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 hereby 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 irrevocably submits with regard to
any such action or proceeding for itself and in respect of 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 4(d)(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 4(f) shall
be deemed effective service of process on such party.
(e) 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 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.
(f) 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 mailed by registered or certified mail (postage prepaid, return receipt
requested), 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 the address
appearing below or at any other address that
such Stockholder may have provided in
writing to Purchaser,
▇▇▇▇ Inlet Region, Inc.
▇▇▇▇ ▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇
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Attention: ▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(ii) if to Purchaser:
Deutsche Telekom AG
140 ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇-Allee
53113 Bonn
Germany
Attention: ▇▇▇▇▇ ▇▇▇▇
Facsimile: 49-228-181-44177
(g) Waiver of Immunity. Purchaser 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). Purchaser 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 Purchaser with respect to this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement as of this 14th day of December, 2000.
PURCHASER:
DEUTSCHE TELEKOM AG
By: /s/ ▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇ ▇▇▇▇
Title: Head of International Legal Affairs
STOCKHOLDER:
▇▇▇▇ INLET REGION, INC.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President, Finance and Accounting
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