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Exhibit 25
AGREEMENT
THIS AGREEMENT is entered into by and among SSPCS Corporation, a
Delaware corporation ("SSPCS"), Deutsche Telekom, an AKTIENGESELLSCHAFT
organized and existing under the laws of the Federal Republic of Germany
("Purchaser"), and VoiceStream Wireless Corporation, a Delaware corporation
("Target") as of the 27th day of September, 2000.
WHEREAS, Purchaser and Target have executed and delivered to each other
that certain Agreement and Plan of Merger dated as of July 23, 2000 (the "Merger
Agreement");
WHEREAS, SSPCS, VoiceStream PCS BTA I Corporation, a Delaware
corporation, Western Wireless Corporation, a Washington corporation and Target
are parties to that certain Exchange Rights Acquisition and Grant Agreement
dated as of January 19, 1999 (the "Exchange Agreement");
WHEREAS, pursuant to the Exchange Agreement, SSPCS has certain rights
to exchange certain partnership interests held by it for the common stock of
Target ("Target Stock");
WHEREAS, the Exchange Agreement requires Purchaser as the "successor
corporation" under the Exchange Agreement to assume certain obligations of
Target in connection with the transactions contemplated by the Merger Agreement;
NOW, THEREFORE, in consideration of the promises set forth herein, and
other good and valuable consideration, the receipt of which is acknowledged, the
parties hereto agree as follows:
1. Assumption and Acknowledgment. (a) Effective as of the Effective
Time, Purchaser (i) assumes all obligations of Target pursuant to the Exchange
Agreement, including the obligation to deliver to SSPCS such cash, shares of
stock, securities or assets or other consideration as SSPCS may be entitled to
acquire under the Exchange Agreement and (ii) agrees that SSPCS shall continue
to have the benefit of Section 3.3 of the Exchange Agreement with respect to
VoiceStream Organic Changes (as defined in the Exchange Agreement) of Purchaser.
(b) SSPCS acknowledges and agrees that (i) the agreements of
Purchaser set forth in this agreement are satisfactory in form and substance to
SSPCS pursuant to Section 3.3 of the Exchange Agreement and satisfy those
obligations of Target required to be satisfied prior to the Effective Time,
which arise under the Exchange Agreement due to the Merger's constituting a
VoiceStream Organic Change under the Exchange Agreement, and (ii) Section 4 of
the Exchange Agreement shall not apply to Purchaser.
2. Exchanges Not Completed Prior to Effective Time. If SSPCS has
not consummated an exchange for Target Stock pursuant to the Exchange Agreement
prior to the Effective Time:
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(a) No later than the Election Deadline, SSPCS shall indicate
to Purchaser in writing (the "Election Date Notice") whether it elects as the
consideration it may receive pursuant to such Exchange Agreement the
consideration that was ultimately payable to those Target shareholders (after
giving effect to any adjustments or prorations made pursuant to the Merger
Agreement) who made the Cash Election, those who made the Mixed Election or
those who made the Stock Election.
(b) For purposes of Section 3.3 of the Exchange Agreement,
upon a VoiceStream Exchange (as defined in the Exchange Agreement), SSPCS shall
be entitled to receive the amount of cash payable to, and number of Purchaser
Ordinary Shares issuable to, a holder of one share of Target stock who made the
election specified in the Election Date Notice multiplied by the number of
shares of Target Stock that would have been issued to SSPCS if it had been able
to and had consummated its exchange under the Exchange Agreement immediately
prior to the Effective Time.
(c) To the extent that any Purchaser Ordinary Shares are
issuable to SSPCS upon exercise of its exchange rights pursuant to the Exchange
Agreement, such shares shall be issued to the Xxxx Inlet Partners Shares Trust
in accordance with Annex 1.05(p) attached hereto. SSPCS shall accept issuance of
Purchaser Ordinary Shares by the Xxxx Inlet Partners Shares Trust in accordance
with Annex 1.05(p) upon exercise of its exchange rights for such shares.
(d) Purchaser and SSPCS acknowledge and agree that the
consideration to be issued to SSPCS upon an exercise of its rights under the
Exchange Agreement does not constitute merger consideration pursuant to the
Merger Agreement.
3. Exchanges Completed Prior to Effective Time. All shares of
Target Stock held by SSPCS prior to the Effective Time shall be accorded the
same treatment as shares of Target Stock generally pursuant to the Merger
Agreement.
4. Other Provisions. (a) SSPCS and Target represent and warrant to
each other and to the Purchaser that, the number of shares of Target Stock that
Target would be required to issue to SSPCS upon an exchange effected as of the
date of this Agreement pursuant to the Exchange Agreement is 153,063 shares.
(b) The following capitalized terms shall have the meanings
assigned to them in the Merger Agreement:
Cash Election
Effective Time
Election Deadline
Merger
Mixed Election
Stock Election
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(d) Notices which may or are required to be given under this
Agreement shall be given by hand, by registered or certified mail, return
receipt requested, by reputable overnight delivery service or by facsimile.
Notices shall be addressed to a party hereunder as set below, and shall be
deemed to have been given as of the date of receipt.
(e) 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 another party hereto or
its successors or assigns shall be brought and determined only in the United
States District Court for the District 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 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, (i) any claim that 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 Paragraph 4(e), (ii) 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 (iii) to the fullest extent permitted by applicable law, that (A) the suit,
action or proceeding in such court is brought in an inconvenient forum, (B) the
venue of such suit, action or proceeding is improper and (C) this Agreement, or
the subject mater hereof, may not be enforced in or by such courts.
(f) 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.
5. Miscellaneous. This Agreement may only be amended in writing
executed by all of the parties hereto. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns. This Agreement shall be governed by and construed in accordance with
the internal laws of the state of Delaware, without regard to the conflicts of
laws provisions thereof. This Agreement may be executed in two or more
counterparts which, taken together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties hereto have executed and
delivered this Agreement to each other as of the date first written above.
DEUTSCHE TELEKOM AG SSPCS CORPORATION
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Xxxxxx
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Its: Head of International Legal Its: Treasurer
Affairs
Address for Notices: Address for Notices:
140 Xxxxxxxxx-Xxxxx-Allee 6650 Old Riverside Drive,
00000 Xxxx Xxxxxxx, XX 00000
Germany Attention: C. Xxxxx Xxxxxxxxxxx
Attention: Xxxxx Xxxx Facsimile: 000-000-0000.
Facsimile: 49-228-181-44177
VOICESTREAM WIRELESS
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
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Its: Executive Vice President
Address for Notices:
0000 000xx Xxxxxx XX
Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxx Xxxxxx, V.P.
Facsimile: 000-000-0000
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