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Exhibit 10
GOLDMAN STOCKHOLDERS AGREEMENT
EXECUTION COPY
STOCKHOLDERS AGREEMENT
This Stockholders Agreement (this "Agreement") dated as of July 23,
2000 among each of the stockholders listed on the signature page hereto (each,
a " 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
all the Stockholders who are parties hereto enter into this Agreement;
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 a Stockholder and by any direct or indirect
Subsidiary of a Stockholder; except that no broker or dealer or any Affiliate
thereof shall be deemed to beneficially own, or own of record, any securities
the beneficial ownership of which is acquired in the ordinary course of the
activities of a broker or dealer registered under Section 15 of the Exchange
Act, including, but not limited to, the acquisition of record or beneficial
ownership of such securities as a result of any market-making or underwriting
activities (including any securities acquired for the investment account of a
broker or dealer in connection with such underwriting activities), or the
exercise of investment or voting discretion authority over any of its customer
accounts, or the acquisition in good faith of such securities in connection
with the enforcement of payment of a debt previously contracted, or those owned
by customer managed accounts, mutual funds, exchange funds or similar
investment funds.
(c) For purposes of this Agreement, the following terms shall
have the following meanings:
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"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, 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.
2. Representations; Warranties and Covenants of Each
Stockholder. Each Stockholder hereby represents and warrants, severally and
not jointly, to DT, solely with respect to itself, as follows:
(a) Title. As of the date hereof, such Stockholder is the sole
record or beneficial owner of the number of shares of VoiceStream Common Stock
or VoiceStream Preferred Stock, as the case may be, set forth opposite such
Stockholder's name on Exhibit A attached hereto (with respect to each
Stockholder, such Stockholder's "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, such Stockholder's "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 such Stockholder's name on Exhibit A attached hereto (with
respect to each Stockholder, such Stockholder's "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, such Stockholder's
"Rights"). Such 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 such Stockholder (excluding the
Existing Rights) and such 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.
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(b) Right to Vote. Such Stockholder has, with respect to all of
such Stockholder's Existing Shares, and will have at the VoiceStream
Stockholders' Meeting, with respect to all of such 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. Each Stockholder hereby revokes any and all
proxies with respect to such Stockholder's Existing Shares to the extent they
are inconsistent with the Stockholders' obligations under this Agreement.
(c) Authority. Such Stockholder has full legal power, authority,
legal capacity and right to execute and deliver, and to perform its or his
obligations under, this Agreement. No other proceedings or actions on the part
of such 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 such Stockholder and constitutes a valid and binding agreement of
such Stockholder enforceable against such Stockholder in accordance with its
terms, subject to (i) bankruptcy, insolvency, moratorium and 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 such 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 such
Stockholder is a party or by which such Stockholder (or any of its assets) is
bound.
(e) DT's Reliance. Such Stockholder understands and acknowledges
that DT is entering into the Merger Agreement in reliance upon such
Stockholder's execution, delivery and performance of this Agreement.
3. Restriction on Transfer; Other Restrictions.
(a) Each Stockholder agrees not to Transfer or agree to Transfer
any Shares or Rights owned of record or beneficially by such 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 in writing 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, each Stockholder agrees not
to Transfer any Shares or Rights owned of record or beneficially by such
Stockholder, provided, however, that this Section 3(b) shall cease to be of any
force or effect immediately upon termination of the Merger Agreement.
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(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, each Stockholder may Transfer only up
to 17.5% of such 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, the
percentage specified in this Section 3(c) 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, each 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, each Stockholder may Transfer only up to 40% of such
Stockholder's Total Number of Shares, inclusive of any Transfer of any DT
Derivative Securities.
(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 a Stockholder
does not fully utilize the permission to Transfer up to 17.5% of such
Stockholder's Total Number of Shares pursuant to Section 3(c), such Stockholder
shall not be permitted to Transfer more than 40% of such 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), a 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 Bega 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 Bega
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 Bega 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).
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(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) Notwithstanding the foregoing, Sections 3(a) through (e),
3(j)(ii), 4, 5 and 9 shall not apply to Stockholder or any of its Affiliates
when acting in the ordinary course of the activities of a broker or dealer
registered under Section 15 of the Securities Exchange Act of 1934, as amended,
including, but not limited to, the acquisition of record or beneficial
ownership of such securities as a result of any market-making or underwriting
activities (including any securities acquired for its investment account as a
broker or dealer in connection with such underwriting activities), or the
exercise of investment discretion authority over any of its customer accounts,
or the acquisition in good faith of such securities in connection with the
enforcement of payment of a debt previously contracted.
(j) Each 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).
(k) Each Stockholder hereby irrevocably waives any rights of
appraisal or rights to dissent from the Merger that such Stockholder may have.
(l) 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 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 Stockholder Agreements with DT in connection with the
Merger (the Stockholder and such other stockholders, collectively, the
"Stockholders") which such existing 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.
(m) 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(l) 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.
(n) 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
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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. Each Stockholder hereby irrevocably and
unconditionally agrees to vote or to cause to be voted or provide a consent
with respect to, all Shares that he or 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 such Stockholder will not consent to,
approval of any Alternative Transaction or the liquidation or winding up of
VoiceStream. The obligations of each such 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, each Stockholder hereby agrees (a) to complete and send
the proxy card received by such 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
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 such 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
Stockholders shall not, nor shall they permit any of their respective
Subsidiaries to, nor shall they authorize or instruct any of their respective
officers, directors, members or employees to, and shall use their reasonable
best efforts to cause any investment banker, financial advisor, attorney,
accountants or other representatives retained by them or any of their
respective Subsidiaries not to, directly or indirectly through another person,
on their 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 any Stockholder in its capacity
as an officer, director, employee of, or adviser or
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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 Telephone
and Data Systems, Inc. ("TDS") and certain stockholders of Aerial
Communications 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 TDS and VoiceStream, the Registration Rights Agreement by
and among VoiceStream and TDS dated May 4, 2000, the Investor Agreement by and
among TDS 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. Each of the Stockholders 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, such 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, such
Stockholder shall not be entitled to the benefit of any preemption rights that
such 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. [Reserved]
9. Additional Shares and Additional Rights. If, after the date
hereof, a 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 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.
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10. Miscellaneous.
(a) Entire Agreement. This 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. Each Stockholder agrees with DT as to
himself or itself that if for any reason such Stockholder fails to perform any
of his or 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, each Stockholder agrees that, in seeking to
enforce this Agreement against such 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 such 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 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.
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(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 such Stockholder or any
other individual, any executors, administrators, estates, legal representatives
and heirs of such 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 a Stockholder, at such Stockholder's address appearing
on Annex A hereto or at any other address that such Stockholder may have
provided in writing to DT and the other Stockholders,
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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Attention: Xxxxxx X. Xxxx
Facsimile: 212-403-2000
And a copy to:
Xxxxxxxx, Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx
Facsimile: 000-000-0000
(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
--------------------------
Name: Xxxxx Xxxx
Title: Head of International Legal
Affairs
GS CAPITAL PARTNERS, L.P.
By: /s/ Xxxxxxx X'Xxxxx
--------------------------
Name:
Title:
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THE XXXXXXX SACHS GROUP, INC.
By: /s/ Xxxxxxx X'Xxxxx
--------------------------
Name:
Title:
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XXXXXX XXXXXX FUND 1992, L.P.
By: /s/ Xxxxxxx X'Xxxxx
--------------------------
Name:
Title:
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STONE STREET FUND 1992, L.P.
By: /s/ Xxxxxxx X'Xxxxx
--------------------------
Name:
Title:
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EXHIBIT A
Stockholder Name and Address Number of Existing Shares Number and Description of Existing Rights
---------------------------- ------------------------- -----------------------------------------
GS Capital Partners, L.P. 8,986,738
c/o Goldman, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X'Xxxxx
Fax: 000-000-0000
The Xxxxxxx Sachs Group, Inc. 68,821
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X'Xxxxx
Fax: 000-000-0000
Xxxxxx Xxxxxx Xxxx 0000, X.X. 273,069
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X'Xxxxx
Fax: 000-000-0000
Stone Street Fund 1992, L.P. 470,401
c/o Goldman, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X'Xxxxx
Fax: 000-000-0000
9,799,029
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