Exhibit 10.2
AGREEMENT
THIS AGREEMENT is entered into by and among Xxxx Inlet GSM, Inc.
("CIGI"), Xxxx Inlet Telecommunications, Inc., a Delaware corporation ("CITI"
and, together with CIGI, "Xxxx Inlet"), 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 ___ day of July, 2000.
WHEREAS, Purchaser and Target have executed and delivered to each other
that certain Agreement and Plan of Merger dated as of the date of this agreement
(the "Merger Agreement");
WHEREAS, CIGI and Target are parties to (i) that certain Exchange Rights
Agreement dated as of May 3, 1999, (ii) that certain Exchange Rights Agreement
(CI-VS II) dated as of February 25, 2000 and (iii) that certain Exchange Rights
Agreement (CI-VS III) dated as of February 25, 2000 (such agreements, together,
the "CIGI Exchange Agreements");
WHEREAS, CITI, 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
December 17, 1998 (the "CITI Exchange Agreement" and, together with the CIGI
Agreements, the "Exchange Agreements");
WHEREAS, pursuant to the Exchange Agreements, Xxxx Inlet has certain
rights, exercisable at various times, to exchange certain partnership or
membership interests held by it for the common stock of Target ("Target Stock");
WHEREAS, the Exchange Agreements require Purchaser as the "Successor
Entity" under the Exchange Agreements 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
Agreements, including the obligation to deliver to Xxxx Inlet such cash, shares
of stock, securities or assets or other consideration as Xxxx Inlet may be
entitled to acquire under the Exchange Agreements and (ii) agrees that CIGI
shall continue to have the benefit of Sections 2.3 and 2.4 of each CIGI Exchange
Agreement and that CITI shall continue to have the benefit of Section 3.3 of the
CITI Exchange Agreement, in each case with respect to increases or combinations
of Purchaser's securities or Organic Changes (as defined in the CIGI Exchange
Agreements) or VoiceStream Organic Changes (as defined in the CITI Exchange
Agreement) of Purchaser.
(b) Xxxx Inlet acknowledges and agrees that (i) the agreements of
Purchaser set forth in this agreement are satisfactory in form and substance to
Xxxx Inlet pursuant to Section 2.4 of the CIGI Exchange Agreements and Section
3.3 of the CITI Exchange and satisfy those
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obligations of Target required to be satisfied prior to the Effective Time,
which arise under the Exchange Agreements due to the Merger's constituting an
Organic Change under the CIGI Agreements and a VoiceStream Organic Change under
the CITI Agreement, and (ii) Section 4 of the CITI Exchange Agreement shall not
apply to Purchaser.
2. Exchanges Not Completed Prior to Effective Time. With respect to
those Exchange Agreements pursuant to which Xxxx Inlet has not consummated an
exchange for Target Stock prior to the Effective Time:
(a) No later than the Election Deadline, Xxxx Inlet 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; provided, however, that nothing in this
paragraph shall be construed to eliminate or affect Xxxx Inlet's "Cash Election"
under the CIGI Exchange Agreements for Non-cash Consideration or its other
rights under Section 2.3 and 2.4 of the CIGI Exchange Agreements, including its
rights to a "Guaranteed Rate" as set forth in Section 2.4(a) thereof.
(b) For purposes of Section 2.4 of the CIGI Exchange Agreements, (i)
Xxxx Inlet and Purchaser shall treat as "Cash Consideration" the amount of cash
payable 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 Xxxx Inlet if it had been able to and had
consummated its exchange under the CIGI Exchange Agreement immediately prior to
the Effective Time and (ii) the parties shall treat as "Non-cash Consideration"
the number of ordinary shares of Purchaser ("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 Xxxx Inlet if it had been able to
and had consummated its exchange under the CIGI Exchange Agreement immediately
prior to the Effective Time. For purposes of Section 3.3 of the CITI Exchange
Agreement, upon a VoiceStream Exchange (as defined in the CITI Exchange
Agreement), Xxxx Inlet 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 Xxxx Inlet if it had been able to and had consummated its exchange under the
CITI Exchange Agreement immediately prior to the Effective Time.
(c) To the extent that any Purchaser Ordinary Shares are issuable to
Xxxx Inlet upon exercise of its exchange rights pursuant to the Exchange
Agreements, such shares shall be issued to the Xxxx Inlet Partners Shares Trust
in accordance with Annex 1.05(_) attached hereto. Xxxx Inlet shall accept
issuance of Purchaser Ordinary Shares by the Xxxx Inlet Partners Shares Trust in
accordance with Annex 1.05(_) upon exercise of its exchange rights for such
shares.
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(d) Purchaser and Xxxx Inlet acknowledge and agree that the
consideration to be issued to Xxxx Inlet upon an exercise of its rights under
the Exchange Agreements does not constitute merger consideration pursuant to the
Merger Agreement.
3. Exchanges Completed Prior to Effective Time.
(a) If Xxxx Inlet provides an Exchange Notice (as defined in the
Exchange Agreements) to Target prior to the date of the meeting of Target's
stockholders called for the purpose of obtaining the approval of the Merger
Agreement and the transactions contemplated therein (the "Meeting Date"), Xxxx
Inlet and Target agree that the exchange of Xxxx Inlet's securities and/or
partnership interests for Target Common Stock shall be delayed until after the
Meeting Date, unless Xxxx Inlet delivers to Purchaser an agreement in the form
of Exhibit A hereto.
(b) All shares of Target Stock held by Xxxx Inlet 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) Xxxx Inlet 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 Xxxx Inlet upon an exchange effected as of
the date of this Agreement pursuant to all of the Exchange Agreements is
8,142,460.295 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
(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
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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. ss. 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 XX XXXX INLET
TELECOMMUNICATIONS, INC.
By: /s/ Xxxxx Xxxx By: /s/ Xxxxx Floerschinger
-------------------------------- ---------------------------------
Its: Head of International Its: Vice President
-------------------------------- ---------------------------------
Legal Affairs
By:
--------------------------------
Its:
--------------------------------
Address for Notices: Address for Notices:
140 Xxxxxxxxx-Xxxxx-Allee 0000 "X" Xxxxxx, Xxxxx 000
00000 Xxxx Xxxxxxxxx, XX 00000
Germany Attention: President
Attention: Xxxxx Xxxx Facsimile: 000-000-0000
Facsimile: 49-228-181-44177
VOICESTREAM WIRELESS XXXX INLET GSM, INC.
CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx By: /s/ Xxxxx Floerschinger
--------------------------------- ---------------------------------
Its: Executive Vice President - Its: Vice President
-------------------------------- --------------------------------
Finance, Strategy and Development
Address for Notices: Address for Notices:
0000 000xx Xxxxxx XX 0000 "X" Xxxxxx, Xxxxx 000
Xxxxx 000 Xxxxxxxxx, XX 00000
Xxxxxxxx, XX 00000 Attention: President
Attention: Xxxx Xxxxxx, V.P. Facsimile: 000-000-0000
Facsimile:
--------------------------
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EXHIBIT A
VOTING AND LOCKUP AGREEMENT
This Voting and Lockup Agreement (this "Agreement") dated as of
__________ __, 2000 among the stockholder listed on the signature page hereto
("Stockholder") and __________, 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 between Purchaser and Target dated as of July __, 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 the 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 such 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 such Stockholder will not consent to,
approval of any Alternative Transaction or the liquidation or winding up of
Target. The obligations of each such 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, each Stockholder hereby agrees (i) to complete and send the proxy card
received by such 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 Stockholder, at Stockholder's address appearing below
or at any other address that Stockholder may have provided in writing to
Purchaser,
0000 X Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxx 00000
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Attention: President
Facsimile: (000) 000-0000
(ii) if to Purchaser:
[Address]
Attention:
Facsimile:
(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. ss. 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.
IN WITNESS WHEREOF, the parties hereto have executed this
Stockholders Agreement as of this ___ day of ______, 2000.
[PURCHASER]
By:
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Name:
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Title:
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By:
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Name:
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Title:
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[STOCKHOLDER]
By:
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Name:
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Title:
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