Exhibit 10.3
AGREEMENT
THIS AGREEMENT is entered into by and among Providence Media Partners
L.P., a Delaware limited partnership ("PMP"), Providence Equity Partners III,
L.P., a Delaware limited partnership ("PEP"), Providence Equity Operating
Partners III, L.P., a Delaware limited partnership ("POP" and together with PMP
and PEP, "Providence"), Deutsche Telekom AG, 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
23rd 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, PMP, VoiceStream PCS BTA I Corporation, Western Wireless
Corporation and Target are parties to that certain Exchange Rights Acquisition
and Grant Agreement dated July 23, 2000 ("Exchange Agreement");
WHEREAS, Providence and Target are parties to the Exchange Rights
Agreement dated July 23, 2000 ("Rights Agreement") (the Exchange Agreement and
the Rights Agreement are collectively referred to herein as the "Exchange
Agreements");
WHEREAS, pursuant to the Exchange Agreements, PMP, PEP and POP have
certain rights, exercisable at various times, to exchange certain partnership or
membership interests held by them for the common stock of Target ("Target
Stock");
WHEREAS, the Exchange Agreements require Purchaser as the "Successor
Entity" under such 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 Acknowledgement. (a) Effective as of the Effective Time,
Purchaser (i) assumes the obligations of Target pursuant to the Exchange
Agreements, including the obligation to deliver to Providence shares of stock,
securities or assets or other consideration as they may be entitled to acquire
under the Exchange Agreements, (ii) agrees that PMP shall continue to have the
benefit of Section 3.3 of the Exchange Agreement and (iii) agrees that PEP and
POP shall continue to have the benefit of Sections 2.3 and 2.4 of the Rights
Agreement, including rights with respect to increases or combinations of
Purchaser's securities or Organic Changes (as defined in the Rights Agreement)
and rights to require payment of cash and delivery of letters of credit in
connection with a "Cash Election" and to a "Guaranteed Rate" (as such terms are
defined in Section 2.4 of the Rights Agreement), all of which obligations
Purchaser assumes.
(b) Providence acknowledges and agrees that the agreements of
Purchaser set forth in this agreement are satisfactory in form and substance to
them pursuant to Section 3.3 of
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the Exchange Agreement and Section 2.4 of the Rights Agreement, as applicable,
and satisfy those obligations of Target required to be satisfied prior to the
Effective Time, which arise under the Exchange Agreements due to the Merger
constituting an Organic Change under the Rights Agreements and a VoiceStream
Organic Change under the Exchange Agreement.
2. Exchanges Not Completed Prior to Effective Time. (a) With
respect to the Exchange Agreements, in the event Providence has not
consummated an exchange for Target Stock prior to the Effective Time:
(i) No later than the Election Deadline, Providence shall indicate
to Purchaser in writing (the "Election Date Notice") whether it elects as the
consideration it may receive pursuant to the Exchange Agreements 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 PEP's and POP's "Cash
Election" under the Rights Agreement for Non-cash Consideration or their other
rights under Section 2.3 and 2.4 of the Rights Agreement, including their rights
to a "Guaranteed Rate" as set forth in Section 2.4(a) thereof; and
(ii) For purposes of Section 2.4 of the Rights Agreement, (i)
Providence 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 Providence if it had been able to and had
consummated its exchange under the Rights 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 Providence if it had been able to and had consummated
its exchange under the Rights Agreement immediately prior to the Effective Time.
(b) For purposes of Section 3.3 of the Exchange Agreement, upon an
Exchange (as defined in the Exchange Agreement), PMP 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 its Election Date Notice multiplied by the number of shares of
Target Stock that would have been issued to PMP if it had been able to and had
consummated its exchange under the Exchange Agreement immediately prior to the
Effective Time.
(c) If PEP, POP or PMP fail to deliver a timely Election Day Notice
they shall be deemed to have made a Cash Election.
(d) To the extent that any Purchaser Ordinary Shares are issuable to
Providence upon exercise of their exchange rights pursuant to the Exchange
Agreements and such exchange rights have not been exercised prior to the
Effective Date, such shares shall be
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issued to the Xxxx Inlet Partners Shares Trust in accordance with Annex 1.05(h)
attached hereto. Providence shall accept issuance of Purchaser Ordinary Shares
by the Xxxx Inlet Partners Shares Trust in accordance with Annex 1.05(h) upon
exercise of their exchange rights for such shares.
(e) Purchaser and Providence acknowledge and agree that the
consideration to be issued to them upon an exercise of their rights under the
Exchange Agreements after the Effective Time does not constitute merger
consideration pursuant to the Merger Agreement.
3. Exchanges Completed Prior to Effective Time.
(a) If Providence 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"),
Providence and Target agree that the exchange of Providence's securities and/or
partnership interests for Target Common Stock shall be delayed until after the
Meeting Date, unless Providence delivers to Purchaser an agreement in the form
of Exhibit A hereto.
(b) All shares of Target Stock held by Providence 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) Providence 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 Providence upon an
exchange effected as of the date of this Agreement pursuant to all of the
Exchange Agreements is 4,321,334 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 forth 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
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(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 matter 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 AG PROVIDENCE MEDIA PARTNERS L.P.
140 Xxxxxxxxx-Xxxxx-Allee By Providence Media GP Limited
53113 Bonn Partnership
Germany By Providence Ventures L.P., its
General Attn: Xxxxx Xxxx Partner
00 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx
By: /s/ Xxxxx Xxxx By: /s/ Xxxxxxxx X. Xxxxxx
--------------------------------- ---------------------------------
Its: Head of International Its: General Partner
--------------------------------- ---------------------------------
Legal Affairs
PROVIDENCE EQUITY OPERATING
PARTNERS III, L.P.
By Providence Equity GP L.P., its General Partner
By Providence Equity Partners III LLC, its General Partner
00 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Its: Managing Director
---------------------------------
PROVIDENCE EQUITY PARTNERS III, L.P.
By Providence Equity GP L.P., its General Partner
By Providence Equity Partners III LLC, its General Partner
00 Xxxxxxx Xxxxx, 0xx Xxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxxx X. Xxxxxx
By: /s/ Xxxxxxxx X. Xxxxxx
---------------------------------
Its: Managing Director
---------------------------------
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VOICESTREAM WIRELESS
CORPORATION
0000 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: Xxxx Xxxxxx, VP Corporate Development
Fax: (000) 000-0000
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Its: Executive Vice President -
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Finance, Strategy and Development
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 23, 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 Exchange Act) 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 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; provided that this Section 2 shall not apply to any Shares or Rights
issued to or owned of record or beneficially by Stockholder pursuant to that
certain Exchange Rights Acquisition and Grant Agreement dated July 23, 2000, by
and among VoiceStream PCS BTA I Corporation, Target, Western Wireless
Corporation and Providence Media Partners L.P.
(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 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.
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(d) Stockholder hereby irrevocably waives any rights of appraisal
or rights to dissent from the Merger that such Stockholder may have.
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.
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(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.
(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 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 (ii) 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, and except that
this Agreement shall not be binding on the transferees of Shares that are
permitted to be Transferred pursuant to this Agreement (other than transferees
who are Affiliates of the Transferring Stockholder).
(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
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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
Purchaser,
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(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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[Stockholder]
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By:
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Name:
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Title:
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