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Exhibit 6
TDS STOCKHOLDER AGREEMENT
EXECUTION COPY
STOCKHOLDER AGREEMENT
This Stockholder Agreement (this "Agreement") dated as of July 23,
2000 among the stockholder listed on the signature page hereto ("Stockholder")
and Deutsche Telekom, an Aktiengesellschaft organized and existing under the
laws of the Federal Republic of Germany ("DT").
WHEREAS, simultaneously with the execution of this Agreement,
VoiceStream Wireless Corporation, a Delaware corporation ("VoiceStream"), and
DT are entering into an Agreement and Plan of Merger (the "Merger Agreement"),
dated as of the date hereof, providing, among other things, for the merger of a
subsidiary of DT with and into VoiceStream.
WHEREAS, DT has agreed to enter into the Merger Agreement only if
Stockholder enters into this Agreement with DT;
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 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) For purposes of this Agreement, the following terms should
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,
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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 other than a
monetization transaction permitted by the Side Letter Agreement.
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 on Exhibit A attached hereto ("Existing Shares" and, together with record
or beneficial ownership of any shares of VoiceStream Common Stock or other
voting capital stock of VoiceStream acquired after the date hereof, whether
upon the exercise of warrants or options, conversion of VoiceStream Preferred
Stock or any convertible securities or otherwise, "Shares"), and/or the number
of warrants, options or other rights to acquire or receive such VoiceStream
Common Stock or VoiceStream Preferred Stock, as the case may be, set forth
opposite on Exhibit A attached hereto ("Existing Rights" and, together with
record or beneficial ownership of any warrants, options or other rights to
acquire or receive such shares of VoiceStream Common Stock or other voting
capital stock of VoiceStream acquired after the date hereof, "Rights").
Stockholder is the lawful owner of the Existing Shares and Existing Rights,
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
Existing Shares constitute all of the capital stock of VoiceStream owned of
record or beneficially by Stockholder (excluding the Existing Rights) and
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, except pursuant to the Existing Rights.
(b) Right to Vote. Stockholder has, with respect to all of
Stockholder's Existing Shares, and will have at the VoiceStream Stockholders'
Meeting, with respect to all of Stockholder's Shares acquired prior to the
record date for the VoiceStream Shareholders' Meeting, sole voting power, sole
power of disposition or sole power to issue instructions with respect to the
matters set forth in Section 4 hereof and to fulfill its obligations under such
Section and shall not take any action or grant any person any proxy (revocable
or irrevocable) or power-of-attorney with respect to any Shares or Rights
inconsistent with his or its obligations as provided by Section 4 hereof.
Stockholder hereby revokes any and all proxies with respect to Stockholder's
Existing Shares to the extent they are inconsistent with the Stockholders'
obligations under this Agreement.
(c) Authority. Stockholder has full legal power, authority, legal
capacity and right to execute and deliver, and to perform its 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
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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).
(d) 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.
(e) DT's Reliance. Stockholder understands and acknowledges that
DT is entering into the Merger Agreement in reliance upon Stockholder's
execution, delivery and performance of this Agreement.
3. Restriction on Transfer; Other Restrictions.
Except as set forth in the Side Letter Agreement between TDS and DT
dated the date hereof (the "Side Letter Agreement"):
(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 3 or pursuant to the Merger Agreement,
Transfers to any Affiliate of the 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 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, Stockholder agrees not to
Transfer any Shares or Rights owned of record or beneficially by Stockholder;
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, such
percentage 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.
(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.
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(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 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), the Stockholder's "Total Number
of Shares" is equal to the sum (such sum, the "Initial Number of Shares") of
(i) the number of shares of Voicestream Common Stock owned of record or
beneficially by the Stockholder as of the later of January 1, 2001 and the date
of the Voicestream Stockholders' Meeting, including any shares of Voicestream
Common Stock obtainable by the Stockholder upon conversion of any shares of
Voicestream Preferred Stock owned by the Stockholder and (ii) the number of
shares of Voicestream Common Stock owned of record or beneficially by the
Stockholder as a result of the exercise or conversion, as applicable, of any
options, warrants or convertible securities (other than Voicestream Preferred
Stock) to acquire shares of Voicestream Common Stock, during the period from
the later of January 1, 2001 and the date of the Voicestream Stockholders'
Meeting, until the earlier of the Effective Time and the termination of the
Merger Agreement. For purposes of Section 3(e), Stockholder's Total Number of
Shares is equal to the sum of (i) 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 all of the
Stockholders who have entered into Stockholder Agreements with DT in connection
with the Merger had made a Mixed Election) and (ii) the number of DT Securities
owned of record or beneficially by the Stockholder as a result of the exercise
or conversion, as applicable, of any options, warrants or convertible
securities to acquire DT Securities (other than any such options, warrants or
convertible securities included in the calculation of the Initial Number of
Shares), during the relevant periods specified in such subsection (e).
(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) 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) or in
connection with a monetization pursuant to the Side Letter Agreement.
(j) Stockholder hereby irrevocably waives any rights of appraisal
or rights to dissent from the Merger that Stockholder may have.
(k) 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
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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 Stockholders Agreements with DT in
connection with the Merger (the Stockholder, and such other stockholders,
collectively, the "Stockholders") which such existing majority 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.
(l) 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(k) 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.
(m) 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. Agreement to Vote. 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 for the VoiceStream Stockholders' Meeting at the VoiceStream
Stockholders' Meeting and at any other annual or special meeting of
stockholders of VoiceStream or action by written consent where such matters
arise (a) in favor of the Merger and the Merger Agreement and approval of the
terms thereof and (b) against, and Stockholder will not consent to, approval of
any Alternative Transaction or the liquidation or winding up of VoiceStream.
The obligations of each Stockholder specified in this Section 4 shall apply
whether or not the Board of Directors of VoiceStream makes a Subsequent
Determination.
5. Delivery of Proxy. In furtherance of the agreements contained
in Section 4 hereof, Stockholder hereby agrees (a) to complete and send the
proxy card received by Stockholder with the VoiceStream Proxy Statement, so
that such proxy card is received by VoiceStream, as prescribed by the
VoiceStream Proxy Statement, not later than the fifth Business Day preceding
the day of the VoiceStream Stockholders Meeting, (b) to vote, by
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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 VoiceStream Stockholder'
Meeting (i) in favor of the Merger and the Merger Agreement and (ii) if the
opportunity to do so is presented to Stockholder on the proxy card, against any
Alternative Transaction and (c) not to revoke any such proxy.
6. No Solicitation. From and after the date hereof, the
Stockholder shall not, nor shall it permit any of its Subsidiaries to, nor
shall it authorize or instruct any of its 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 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 advisor
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, the Parent
Stockholder Agreement dated as of September 17, 1999 by and between Stockholder
and certain stockholders of Aerial Communications Inc. and VoiceStream, the
Stockholders Agreement by and among WWC, Xxxxxxxxxx Telecommunications PCS
(USA) Limited and VoiceStream, the Investor Agreement, dated as of June 23,
1999 by and among Xxxxxxxxxx Telecommunications PCS (USA) Limited and
VoiceStream, the Stockholders Agreement dated September 17, 1999 by and among
Stockholder and VoiceStream, the Registration Rights Agreement by and among
VoiceStream and Stockholder dated May 4, 2000, the Investor Agreement by and
among Stockholder and VoiceStream, dated as of May 4, 2000, the Investor
Agreement by and among Sonera Ltd. and VoiceStream dated as of September 17,
1999, the Registration Rights Agreement between VoiceStream and Sonera Ltd.
dated as of September 17, 1999, 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. Except as set forth in the Side Letter Agreement, 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 and
(b) from the date hereof until the earlier of the termination of the Merger
Agreement or the Effective Time, Stockholder shall not be entitled to the
benefit of any preemption rights that Stockholder may have under the agreements
listed in the immediately preceding sentence as a result of the investment
contemplated by the DT Financing Agreements. 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. Additional Shares and Additional Rights. If, after the date
hereof, Stockholder acquires record or beneficial ownership of any additional
shares of capital stock of VoiceStream (any such shares, "Additional Shares"),
including, without limitation, upon exercise of any option, warrant or right to
acquire shares of capital stock of VoiceStream, through the
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conversion of the VoiceStream Preferred Stock or through any stock dividend or
stock split, or record or beneficial ownership of any additional options,
warrants or rights to acquire shares of capital stock of VoiceStream (any such
options, warrants, or rights, "Additional Rights"), the provisions of this
Agreement applicable to the Shares and the Rights shall be applicable to such
Additional Shares and Additional Rights from and after the date of acquisition
thereof. The provisions of the immediately preceding sentence shall be
effective with respect to Additional Shares and Additional Rights without
action by any Person immediately upon the acquisition by any Stockholder of
record or beneficial ownership of such Additional Shares or Additional Rights.
9. Miscellaneous.
(a) Entire Agreement. This Agreement together with the Side
Letter 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.
(e) Specific Performance. Stockholder agrees with DT 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 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 Sections 3, 4
and 5) 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
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applicable time period set forth therein lapses. The provisions of
Sections 4 and 5 of this Agreement shall terminate upon the earlier of
the consummation of the Merger and termination of the Merger Agreement.
(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) 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 Stockholder or any other
individual, any executors, administrators, estates, legal representatives and
heirs of 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 below
at any other address that Stockholder may have provided in writing to DT,
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Telephone and Data Systems, Inc.
00 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000
Attention: XxXxx X. Xxxxxxx, Xx., President
Facsimile: 000-000-0000
with a copy to:
Sidley & Austin
Bank Xxx Xxxxx
00 Xxxxx Xxxxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Facsimile: 312-853-7036
(ii) if to DT:
Deutsche Telekom AG
140 Xxxxxxxxx-Xxxxx-Allee
53113 Bonn
Germany
Attention: Xxxxx Xxxx
Facsimile: x00-000-000-00000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
(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 23rd day of July, 2000.
DEUTSCHE TELEKOM AG
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
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Title: Head of International Legal
---------------------------
Affairs
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TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxx
-----------------------------
Title: Executive Vice President -
----------------------------
Finance and Chief Financial Officer
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EXHIBIT A
Stockholder Name and Address Number of Existing Shares Number and Description of Existing Rights
---------------------------- ------------------------- -----------------------------------------
Telephone and Data 35,570,493
Systems, Inc.
00 Xxxxx XxXxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: XxXxx X.
Xxxxxxx, Xx., President
Facsimile: 000-000-0000
B-1
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Exhibit 6
SIDE LETTER AGREEMENT
This Side Letter Agreement is entered into as of July 23, 2000
between Telephone and Data Systems, Inc. ("TDS") and Deutsche Telekom AG ("DT").
WHEREAS, TDS and DT have entered into a Stockholder Agreement dated
the date hereof ("Stockholder Agreement"), with the agreements reflected herein
taking precedence over those in the Stockholder Agreement to the extent
inconsistent;
WHEREAS, TDS and DT desire to enter into this Side Letter Agreement
relating to certain other agreements between TDS and DT;
WHEREAS, capitalized terms used herein have the meanings set forth
in the Stockholder Agreement unless otherwise defined herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein, the parties agree as follows:
Notwithstanding anything to the contrary in the Stockholder
Agreement or the Merger Agreement:
1. If the Board of TDS determines that it may be an "investment
company" under Section 3(a)(1)(C) of the Investment Company Act of 1940, as
amended (the "1940 Act") and that it does not have available to it any exemption
(other than the exemption for transient investment companies under Rule 3a-2)
under the 1940 Act, then, unless it reasonably determines (based on the advice
of counsel) and certifies to DT that it cannot in good faith apply for an
exemption under Section 3(b)(2) of the 1940 Act, it will, as soon as
practicable, apply for and use its commercially reasonable efforts to obtain an
exemption from the SEC under Section 3(b)(2).
2. If TDS is not successful in obtaining an exemptive order under
Section 3(b)(2) within six months of filing an application therefor - or has
determined that it cannot in good faith apply for exemption under Section
3(b)(2) - then notwithstanding the provisions of the "lock-up" contained in the
Stockholder Agreement, it will be permitted to sell, transfer, assign or
otherwise monetize or dispose of (a "Disposition") from time to time an
aggregate number of shares in VoiceStream (and after the Effective Time DT ADRs
or shares it receives in the Merger) in addition to the number of shares it is
otherwise permitted to Dispose of under the terms of the Stockholder Agreement
("Excess Shares") which is determined by the Board of TDS to be appropriate to
come into and maintain compliance with the 1940 Act while providing a reasonable
margin of safety, and to avoid characterization as an investment company,
provided each of the following conditions is met:
a. No Disposition of Excess Shares will take place before TDS provides
written notice to DT specifying the respective dates on which TDS
believes the exclusion period available to TDS under Rule 3a-2
commenced and is expected to terminate in
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accordance with the provisions of such Rule (and TDS will use its
best efforts to provide such written notice to DT within 15 days
after TDS makes an election to rely on the transient investment
company exclusion provided in Rule 3a-2).
b. No Disposition of Excess Shares will take place before the date six
months prior to the date on which the exemption available to TDS
under Rule 3a-2 is expected to terminate (including any extensions
thereof from and after the date granted).
c. No Disposition of Excess Shares will take place before the
VoiceStream Shareholder Approval is obtained unless the acquiror of
such shares takes them subject to TDS's voting obligations contained
in the Stockholder Agreement (or the Disposition is otherwise
structured so TDS retains voting rights), provided that TDS may
Dispose of Excess Shares without regard to the foregoing restriction
if the VoiceStream Shareholder Approval has not occurred as of the
date four and one-half months prior to the date on which the
exemption available to TDS under Rule 3a-2 is expected to terminate
(including any extensions thereof from and after the date granted);
provided, however, in the event TDS obtains an extension of the
one-year exclusion period of at least one and one-half months, then
the four and one-half month period referred to in this paragraph c
shall be six months.
d. Prior to any Disposition of Excess Shares, TDS receives an opinion
of outside counsel (which may rely upon certificates of officers of
TDS as to factual matters), which may express a reasoned opinion, to
the effect that but for the exemption available under Rule 3a-2 TDS
would be an investment company (and no other exemption is
available).
e. Prior to any Disposition of Excess Shares, the determination of the
Board of TDS required by this paragraph 2 shall be set forth in an
appropriate resolution or resolutions of the Board.
f. TDS will dispose of such minimum number of shares as determined by
the Board of TDS pursuant to this paragraph 2.
g. TDS will afford DT the opportunity to consult with it on the timing
and manner of sale of the Excess Shares and to identify potential
purchasers of the Excess Shares which TDS will make commercially
reasonable efforts to sell to on market terms.
h. If prior to the Effective Time of the Merger, TDS has Disposed of in
excess of 17.5% of its shares (provided, however, that if the
Effective Time shall not have occurred by July 31, 2001 such 17.5%
shall be increased by 3.75% on August 1, 2001 and if the Effective
Time shall not have occurred by August 31, 2001 such percentage
shall be increased by an additional 3.75% on September 1, 2001), the
availability of the 40% exception to the "lock-up" contained in the
Stockholder Agreement shall be reduced by the number of Excess
Shares Disposed of prior to the Effective Time (without impacting
TDS' right to Dispose of Excess Shares in accordance with this
paragraph 2).
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3. In the event that prior to the Effective Date TDS is permitted to
dispose of any shares under the foregoing provisions or under the 17.5%
exception (as adjusted) to the lock-up contained in the Stockholder Agreement,
DT shall use commercially reasonable efforts to provide such information as may
reasonably be necessary to permit VoiceStream to fulfill its obligations under
the Registration Rights Agreement dated May 4, 2000 between TDS and VoiceStream
("VoiceStream Registration Rights Agreement").
4. For a period of two years following the Merger, DT shall timely file
with the SEC each Form 20-F and Form 6-K required to be filed by it under the
Exchange Act and the rules and regulations thereunder in order to satisfy the
current public information requirements of Rule 144 so that TDS will be
permitted to Dispose of DT Depository Shares under Rule 145(d).
5. The parties acknowledge that the Effective Time cannot take place
prior to November 5, 2000, and DT agrees that the Effective Time shall not take
place prior to November 5, 2000.
6. Subject to paragraph c below, DT and its counsel shall use best
efforts to work with TDS and its counsel to establish procedures within 30 days
after the date hereof in order to arrange for the delivery of the Merger
Consideration payable to TDS on the Closing Date or as promptly thereafter as
reasonably possible, as follows:
a. If reasonably possible considering German law, TDS and DT shall
establish procedures pursuant to which DT shall cause the Escrow
Agent to deliver any cash payable to TDS under Section 1.05 of the
Merger Agreement in immediately available funds on the Closing Date
pursuant to wire transfer instructions delivered by TDS to DT at
least three Business Days prior to the Closing Date or, if this is
not possible, TDS and DT shall establish procedures pursuant to
which such cash to be delivered to TDS would be delivered as
promptly as possible thereafter. If TDS identifies a means pursuant
to which the cash may be delivered on the Closing Date or at any
earlier time thereafter than that proposed by DT, DT shall use such
means unless such means are not reasonably possible.
b. If reasonably possible considering German law, TDS and DT shall
establish procedures pursuant to which DT shall cause the Escrow
Agent to deliver DT ADRs representing DT Depositary Shares (or, if
elected by TDS, certificates representing DT Ordinary Shares), at
such location as may be reasonably requested by TDS on the Closing
Date or, if this is not possible, TDS and DT shall establish
procedures pursuant to which such DT ADRs or certificates will be
delivered to TDS as promptly as possible thereafter. Such DT ADRs or
certificates shall be delivered in a commercially reasonable manner
considering the magnitude of the value of the DT Depositary Shares
represented by such DT ADRs (or DT Ordinary Shares represented by
such certificates), which may include at TDS's expense armored car
delivery and depository arrangements, as reasonably requested by
TDS. If TDS identifies a means pursuant to which the DT ADRs or
certificates may be delivered on the Closing Date or at any earlier
time thereafter than that proposed by DT, DT shall use such means
unless such means are not reasonably possible.
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c. In connection with the foregoing, DT and TDS shall establish
procedures pursuant to which TDS shall deliver to the Escrow Agent
(i) its Election prior to the Election Deadline (as such terms are
defined in the Merger Agreement), and (ii) certificates representing
TDS's shares of VoiceStream Common Stock together with a Letter of
Transmittal (as defined in the Merger Agreement) on the Closing
Date.
7. DT has delivered to TDS prior to the execution of this Side Letter
Agreement copies of the final versions of Stockholder Agreements and other
agreements (if any) entered into between DT and any stockholder of VoiceStream
in connection with the Merger Agreement.
8. In the event that TDS Transfers its shares in VoiceStream Common
Stock to an Affiliate of TDS (as permitted by Section 3(a) of the Stockholder
Agreement), such Affiliate will agree in writing to be bound by the terms of
this Side Letter Agreement as well as the terms of the Stockholder Agreement
and, in such event, TDS and DT agree that the terms of this Side Letter
Agreement will apply to TDS and such Affiliate.
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IN WITNESS WHEREOF, the parties hereto have executed this Side
Letter Agreement as of this 23 day of July, 2000.
DEUTSCHE TELEKOM AG
By: /s/ Xxxxx Xxxx
-------------------------------------------
Name: Xxxxx Xxxx
-------------------------------------
Title: Head of International Legal Affairs
------------------------------------
TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------------
Title: Executive Vice President - Finance
------------------------------------
and Chief Financial Officer
Signature Page to Side Letter Agreement
relating to Deutsche Telekom-VoiceStream Transaction
5
