Exhibit 99.1
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STOCK SUBSCRIPTION AGREEMENT
BY AND BETWEEN
VOICESTREAM WIRELESS CORPORATION
AND
DEUTSCHE TELECOM AG
DATED: July 23, 2000
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STOCK SUBSCRIPTION AGREEMENT
STOCK SUBSCRIPTION AGREEMENT (the "Agreement"), dated as of July
23, 2000, by and between VOICESTREAM WIRELESS CORPORATION, a Delaware
corporation (the "Company"), and DEUTSCHE TELECOM AG, an AKTIENGESELLSCHAFT
organized under the laws of the Federal Republic of Germany (the "Investor").
W I T N E S S E T H :
WHEREAS, the Company is engaged in the communications business in
the United States;
WHEREAS, the Company and the Investor are simultaneously herewith
entering into the Agreement and Plan of Merger (the "Merger Agreement"),
pursuant to which the Company will be merged with a Subsidiary of the Investor;
WHEREAS, in connection with the execution and delivery of the
Merger Agreement, upon the terms and conditions set forth in this Agreement, the
Company has determined to issue and sell, and the Investor has determined to
purchase, for an aggregate purchase price of Five Billion Dollars
($5,000,000,000.00) in cash, 3,906,250 shares of Convertible Voting Preferred
Stock, par value $0.001 per share, of the Company (the "Preferred Stock") having
the rights and preferences set forth in the designation of preferences attached
hereto as Exhibit A.
NOW, THEREFORE, in consideration of the mutual covenants,
conditions and promises hereinafter set forth, the parties hereby agree as
follows:
ARTICLE 1
DEFINITIONS
Unless the context otherwise requires, the terms defined
hereunder shall have the meanings therein specified for all purposes of this
Agreement, applicable to both the singular and plural forms of any of the terms
defined herein. For purposes of this Agreement:
"Affiliate" shall mean, with respect to any party hereto, any
corporation or other business entity which directly or indirectly through stock
ownership or through any other arrangement either controls, is controlled by or
is under common control with, such party. The term "control" shall mean the
power to direct the affairs of such person by reason of ownership of voting
stock or other equity interests, by contract or otherwise.
"Agreement" shall have the meaning set forth in the preamble
hereof.
"Business Day" shall mean any day other than a Saturday, Sunday
or a legal holiday in New York, New York, Seattle, Washington or Bonn, Germany
or any other
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day on which commercial banks in those locations are authorized by law or
governmental decree to close.
"Closing" shall have the meaning set forth in Section 2.02.
"Closing Date" shall have the meaning set forth in Section 2.02.
"Common Stock" shall mean the common stock, par value $.001 per
share, of the Company.
"Communications Act" shall mean the Communications Act of 1934
and Telecommunications Act of 1996, both as amended from time to time, and all
rules and regulations promulgated under either thereof.
"Company" shall have the meaning set forth in the preamble
hereof.
"Xxxx Inlet Joint Venture" shall mean any of Xxxx Inlet Western
Wireless PV/SS PCS, L.P., Xxxx Inlet VoiceStream PCS, LLC, Xxxx Inlet/VS GSM II
PCS, LLC and Xxxx Inlet/VS GSM III PCS, LLC.
"Dollar" or "$" shall mean the basic unit of the lawful currency
of the United States of America.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor Federal statute, and the rules and regulations promulgated
thereunder, all as amended, and as the same may be in effect from time to time.
"FCC" shall mean the United States Federal Communications
Commission, or any other similar or successor agency of the Federal government
administering the Communications Act.
"First Amended and Restated Voting Agreement" shall mean the
First Amended and Restated Voting Agreement of even date herewith between the
Company and each of the Stockholders of the Company specified therein, such
agreement to be substantially in the form attached hereto as Exhibit B.
"HSR Act" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976, as amended.
"Investor" shall have the meaning set forth in the preamble
hereof.
"Investor Agreement" shall mean the Investor Agreement of even
date herewith between the Company and Investor, such agreement to be
substantially in the form attached hereto as Exhibit C.
"Liens" shall mean any lien, claim, security interest, charge,
encumbrance or title retention agreement of any nature.
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"Material Adverse Effect" means, with respect to Xxxxxx and its
Subsidiaries and the Xxxx Inlet Joint Venture, taken as a whole, or Bega and its
Subsidiaries, taken as a whole, any change in or effect on the business of
Xxxxxx and its Subsidiaries and the Xxxx Inlet Joint Ventures taken as a whole
or Bega and its Subsidiaries taken as a whole, as the case may be, that is or is
reasonably likely to be materially adverse to the business, operations or
financial condition of Xxxxxx, and its Subsidiaries and the Xxxx Inlet Joint
Ventures taken as a whole or Bega and its Subsidiaries taken as a whole,
respectively, but shall not include the effects of changes or developments (A)
that are generally applicable in (i) the telecommunications industry, including
regulatory and political conditions, and not uniquely relating to Bega or
Xxxxxx, (ii) the United States or European economy, or (iii) the United States
or European securities markets, or (B) resulting from the announcement or the
existence of the Merger Agreement and the transactions contemplated thereby.
"Person" shall mean any general or limited partnership,
corporation, joint venture, trust, business trust, governmental agency,
cooperative, association, individual or other entity, and heirs, executors,
administrators, legal representatives, successors and assigns of such person.
"Preferred Stock" shall have the meaning set forth in the third
recital hereof.
"Purchase Price" shall have the meaning set forth in Section
2.01.
"Purchased Shares" shall have the meaning set forth in Section
2.01.
"SEC" shall mean the Securities and Exchange Commission or its
successors.
"SEC Reports" shall have the meaning set forth in Section
4.01(h).
"Second Closing Date" shall have the meaning set forth in Section
2.02(a).
"Securities Act" shall mean the Securities Act of 1933, and any
similar or successor Federal statute, and the rules and regulations promulgated
thereunder, all as amended, and as the same may be in effect from time to time.
"Subsidiary" means any Person on the date of determination of
which the Company or Investor, 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.
When a reference is made in this Agreement to a Section, such
reference shall be to a Section of this Agreement unless otherwise indicated.
Whenever the words "include," "includes" or "including" are used in this
Agreement, they shall be deemed to be followed by the words "without
limitation." The use of a gender herein shall be deemed to include the neuter,
masculine and feminine genders whenever necessary or appropriate. Whenever the
word "herein" or "hereof" is used in this Agreement, it shall
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be deemed to refer to this Agreement and not to a particular Section of this
Agreement unless expressly stated otherwise.
ARTICLE 2
PURCHASE AND SALE OF STOCK; CLOSING
Section 2.01. Purchase
The Investor hereby subscribes for and agrees to purchase from
the Company, and the Company hereby accepts the Investor's subscription for and
agrees to sell to the Investor, for an aggregate purchase price of Five Billion
Dollars ($5,000,000,000.00) (the "Purchase Price"), 3,906,250 shares of
Preferred Stock for a purchase price (in Dollars) per share equal to One
Thousand Two Hundred Eighty Dollars ($1,280.00) (the "Purchased Shares").
Section 2.02. Closing
(a) Closing Date. Consummation of the transactions contemplated
hereby (the "Closing") shall take place, subject to the satisfaction (or express
written waiver) of all conditions to the Closing under Article 5 hereof, on the
third Business Day after the waiting periods, if applicable, of the HSR Act
shall have expired or been terminated (the "Closing Date"); provided, however,
that in the event that under the Communications Act, the Investor is not
permitted as a result of limitations on foreign ownership to purchase all of the
Purchased Shares without first obtaining a waiver of such limitation on foreign
ownership from the FCC, the Investor shall purchase such lesser amount as the
Investor shall be permitted to purchase without violating such limitation on
foreign ownership. Any shares not so purchased by the Investor on the Closing
Date shall be purchased by the Investor on the third Business Day after any
required waiver under the Communications Act shall have been obtained, it being
understood that such waiver need not be by final order (the "Second Closing
Date").
(b) Location. The Closing, and if applicable the second closing
contemplated by the proviso set forth in Section 2.02(a), shall take place at
11:00 A.M. on the Closing Date at the offices of Cleary, Gottlieb, Xxxxx &
Xxxxxxxx, New York, New York or at such other place as the parties hereto shall
agree. At the Closing, and if applicable the second closing contemplated by the
proviso set forth in Section 2.02(a), the Company shall, upon receipt of the
Purchase Price by wire transfer of immediately available funds to the account
specified therefor by the Company, promptly deliver to the Investor duly
executed and issued stock certificates evidencing the Purchased Shares.
ARTICLE 3
COVENANTS AND AGREEMENTS
Section 3.01. Covenant of the Company
From and after the execution and delivery of this Agreement to
and including the Closing Date, the Company shall use its best efforts to cause
the transactions
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contemplated by this Agreement to be consummated in accordance with the terms
hereof, including (i) using its reasonable best efforts to obtain all
authorizations of, and make all filings with and give all notices to, all
governmental authorities and agencies, having jurisdiction, including the FCC,
and (ii) using commercially reasonable efforts to obtain all necessary
approvals, consents, permits, licenses and other authorizations of, and making
all filings with, and giving all notices to, third parties, which in any such
case may be necessary or reasonably required of the Company in order to
consummate the transactions contemplated hereby.
Section 3.02. Covenant of the Investor
From and after the execution and delivery of this Agreement to
and including the Closing Date, the Investor shall use its best efforts to cause
the transactions contemplated by this Agreement to be consummated in accordance
with the terms hereof, including (i) using its reasonable best efforts to obtain
all authorizations of, and make all filings with and give all notices to, all
governmental authorities and agencies, having jurisdiction, including the FCC,
and (ii) using commercially reasonable efforts to obtain all necessary
approvals, consents, permits, licenses and other authorizations of, and making
all filings with, and giving all notices to, third parties, which in any such
case may be necessary or reasonably required of the Investor in order to
consummate the transactions contemplated hereby.
Section 3.03. HSR Act
It is understood that the consummation of this transaction is
subject to the filing with the Federal Trade Commission and the Antitrust
Division of the Department of Justice of all reports and notifications which are
required under the HSR Act and the expiration or termination of certain
applicable waiting periods under the HSR Act without objection by such
authorities. The Investor and the Company shall file, or cause to be filed, with
the Federal Trade Commission and the Antitrust Division of the Department of
Justice not more than five (5) Business Days from the date hereof any and all
such reports or notifications and any other filings required under any other
Federal law or administrative regulations in connection with the purchase of the
Purchased Shares under this Agreement.
Section 3.04. FCC Consent
If the transactions contemplated hereby are subject to the prior
approval or waiver of the FCC, the parties shall use their best efforts to file
with the FCC, to the extent the prior approval or waiver of the FCC shall be
required, as soon as practicable following the date hereof and in no event later
than five (5) Business Days from the date hereof, an application requesting the
approval or waiver of the FCC to the transactions contemplated hereby (including
any waiver of foreign ownership limitations under the Communications Act with
respect to the capital stock of the Company). Each of the parties hereto shall
diligently take or cooperate in the taking of all steps which are necessary or
appropriate to expedite the prosecution and favorable consideration of such
applications. The parties
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covenant and agree to undertake all actions reasonably equested by the FCC and
to file such material as shall be necessary or required to obtain any necessary
approvals or waivers or other authority from the FCC in connection with the
foregoing applications.
Section 3.05. Full Access
From and after the execution and delivery of this Agreement to
and including the Closing Date, the Company shall give to the Investor and its
agents and representatives (including its independent auditors and attorneys)
reasonable access (such access not to interfere unreasonably with the Company
and its Subsidiaries or their respective operations), during normal business
hours and upon reasonable notice as described below, to all of the Company's and
its Subsidiaries' personnel, premises, properties, assets, financial statements
and records, books, contracts, documents and commitments, in each case of or
relating to or affecting the Company and its Subsidiaries, and shall furnish the
Investor and its agents and representatives with all such information concerning
the affairs of or relating to or affecting the Company and its Subsidiaries, as
the Investor may reasonably request.
Section 3.06. FCC Compliance
From and after the execution and delivery of this Agreement
through and including the Closing Date, and for so long as the Investor shall
own any of the Purchased Shares, the Investor covenants and agrees that in the
event the Investor takes action which would (i) cause the Company to exceed the
broadband Commercial Mobile Radio Service spectrum aggregation limits under the
Communications Act, it shall cause any representative or designee of the
Investor to resign from the Company's Board of Directors or dispose of any
Common Stock or Purchased Shares beneficially owned by the Investor or take such
other actions as will be sufficient such that the Company shall not be in
violation of the Communications Act, and (ii) render the Investor and/or any
other "foreign carrier" an "affiliate" of the Company, as those terms are
defined in the Communications Act, the Investor shall provide the Company at
least ninety (90) days prior written notice.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
Section 4.01. Representations and Warranties of the Company
Except as disclosed in the Company SEC Reports filed prior to the
date of this Agreement and except as set forth in the Company disclosure
schedules to this Agreement (it being agreed that disclosure of any item in such
schedules shall be deemed disclosure with respect to any section of this
Agreement to which the relevance of such item is reasonably apparent), the
Company hereby represents and warrants (which representations and warranties
shall survive the execution and delivery of this Agreement and the consummation
of the transactions herein contemplated) as follows:
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(a) Incorporation of Representations and Warranties in Merger
Agreement. The representations and warranties of the Company set forth in
Article 2 of the Merger Agreement (together with the schedules thereto) are
hereby incorporated by reference, and are hereby made by the Company to the
Investor as of the date hereof and the Closing Date, in their entirety with the
same force and effect, provided, that all references to the Merger Agreement
therein shall be deemed to be references to this Agreement whether or not the
Merger Agreement shall be in force and effect on any relevant date under this
Agreement.
(b) Purchased Shares. The Purchased Shares (and the shares of
Common Stock issuable upon the conversion of the Purchased Shares) (i) have been
duly authorized by all necessary corporate action on the part of the Company,
(ii) shall be (when issued) validly issued and outstanding, fully paid and
nonassessable, and (iii) shall not be subject to any preemptive rights of the
holders of any other class or series of the capital stock of the Company. At the
Closing, the Purchased Shares (and the shares of Common Stock issuable upon the
conversion of the Purchased Shares) shall be free and clear of all Liens, with
the exception of any restrictions on transferability under the Securities Act,
Communications Act or any securities laws of any jurisdiction.
(c) No Brokers. Except for Xxxxxxx, Sachs & Co., no agent,
broker, investment banker, Person or firm is or will be entitled to any broker's
or finder's fee or any other commission or similar fee directly or indirectly in
connection with the transactions contemplated by this Agreement based in any way
on any arrangements, agreements or understandings made by or on behalf of the
Company or an Affiliate thereof, and the Company hereby agrees to indemnify the
Investor and agrees to hold harmless the Investor against and in respect of any
claims for brokerage and other commissions relating to such transactions based
in any way on any arrangements, agreements or understandings made by or on
behalf of the Company or an Affiliate thereof.
Section 4.02. Representations and Warranties of the Investor
Except as disclosed in the Investor SEC Reports filed prior to
the date of this Agreement and except as set forth in the Investor disclosure
schedules to this Agreement (it being agreed that disclosure of any item in such
schedules shall be deemed disclosure with respect to any section of this
Agreement to which the relevance of such item is reasonably apparent), Investor
hereby represents and warrants (which representations and warranties shall
survive the execution and delivery of this Agreement and the consummation of the
transactions herein contemplated) as follows:
(a) Incorporation of Representations and Warranties in Merger
Agreement. The representations and warranties of the Investor set forth in
Article 3 of the Merger Agreement (together with the schedules thereto) are
hereby incorporated herein by reference, and are hereby made by the Investor to
the Company as of the date hereof and the Closing Date, in their entirety with
the same force and effect, provided, that all references to the Merger Agreement
therein shall be deemed to be references to this
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Agreement whether or not the Merger Agreement shall be in force and effect on
any relevant date under this Agreement.
(b) No Interest Causing Foreign Carrier Affiliation. None of the
Investor, its Affiliates, or any Person controlling the Investor or its
Affiliates as of the Closing:
(i) holds or will hold a direct or indirect ownership
interest in a Person holding stock in the Company where such
Person's stock, when added to the Purchased Shares, amounts to
more than 25 percent of the capital stock of the Company, or
(ii) is a party to, or beneficiary of a contractual relation
affecting the provision or marketing of international basic
telecommunications in the United States with a Person holding
stock in the Company that is also a "foreign carrier," or an
"affiliate" of a foreign carrier, as those terms are defined in
the Communications Act, where such Person's stock, when added to
the Purchased Shares, amounts to more than 25 percent of the
capital stock of the Company.
(c) Securities Representation. The Investor acknowledges that:
(i) it is not a United States person (as defined in Regulation S under the
Securities Act) and, in determining to make its purchase hereunder, has made its
buying decision outside the United States; (ii) it is an accredited investor (as
defined in Rule 501 under the Securities Act); (iii) it has such knowledge and
experience in financial and business matters that it is capable of evaluating
the merits and risks of investing in the Company as contemplated hereby or,
alternatively, that it has engaged the services of a representative who has such
knowledge and experience in financial and business matters as to be capable of
evaluating the merits and risks of the proposed investment and who has reviewed
the proposed investment on its behalf; (iv) the Purchased Shares being delivered
by the Company to the Investor have not been registered under the Securities Act
or under the securities laws of any state in reliance upon Federal and state
exemptions for offshore transactions or transactions not involving a public
offering and are not being acquired with a view to the distribution thereof
except pursuant to a registration statement in compliance with Federal and state
securities laws or an exemption therefrom; (v) the Purchased Shares must be held
by the Investor indefinitely unless subsequently so registered or if an
exemption from such registration is available; and (vi) it has received
information concerning the Company and has had the opportunity to obtain
additional information as desired in order to evaluate the merits and risks
inherent in holding the Purchased Shares.
(d) No Brokers. Except for Xxxxxxxxx, Xxxxxx and Xxxxxxxx and
Dresdner Kleinwort Xxxxxx, no agent, broker, investment banker, Person or firm
is or will be entitled to any broker's or finder's fee or any other commission
or similar fee directly or indirectly in connection with the transactions
contemplated by this Agreement based in any way on any arrangements, agreements
or understandings made by or on behalf of the Investor or an Affiliate thereof,
and the Investor hereby agrees to indemnify the Company and agrees to hold
harmless the Company against and in respect of any claims for
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brokerage and other commissions relating to such transactions based in any way
on any arrangements, agreements or understandings made by or on behalf of the
Investor or an Affiliate of the Investor.
(e) No Interest in FCC Licenses. Neither the Investor nor any of
its Subsidiaries has any license to provide or is providing, or owns, directly
or indirectly, any interest in, or appoints any officer or director of, any
entity which has a license to provide or which is providing (whether by
Management Agreement or other means), broadband Commercial Mobile Radio Services
in the United States.
ARTICLE 5
CONDITIONS TO OBLIGATIONS
Section 5.01. Conditions to the Obligation of the Company
The obligation of the Company to perform, fulfill or carry out
its agreements, undertakings and obligations herein made or expressed to be
performed, fulfilled or carried out on the Closing Date is and shall be subject
to fulfillment of or compliance with, on or prior to the Closing Date, the
following conditions precedent, any of which may be waived by the Company in its
sole discretion, in whole or in part:
(a) Representations and Warranties. The representation and
warranty of the Investor set forth in Section 3.07(a) of the Merger Agreement
(as incorporated herein pursuant to Section 4.02(a)) shall have been true and
correct on the date hereof and on and as of the Closing Date as though made on
the Closing Date; and the other representations and warranties of the Investor
set forth in this Agreement (including the other representations and warranties
incorporated herein pursuant to Section 4.02(a)) shall have been true and
correct on the date hereof and, on and as of the Closing Date as though made on
the Closing Date (except to the extent that any representation or warranty
expressly speaks as of an earlier date, in which case it shall be true and
correct as of such date) except (i) for changes permitted under Section 4.02 of
the Merger Agreement or otherwise contemplated by the Merger Agreement, and (ii)
for such failures to be true and correct which in the aggregate would not
reasonably be expected to result in a Material Adverse Effect on Bega.
(b) HSR Act; FCC. The waiting periods, if applicable, of the HSR
Act shall have expired or been terminated. Subject to Section 2.02(a), any
required approval or waiver of the FCC shall have been obtained; provided that
any order with respect to any such approval or waiver shall not be required to
be a final order.
(c) Purchase Price. The Investor shall have delivered to the
Company the Purchase Price as required hereunder.
(d) No New Statutes. No statute, rule or regulation shall have
been enacted by any state or Federal government or governmental agency in the
United States which
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would render the consummation of the purchase of the Purchased Shares by the
Investor unlawful.
(e) Other Agreements. (i) The Investor and certain principal
stockholders of the Company shall have entered into the First Amended and
Restated Voting Agreement, and (ii) the Investor shall have entered into the
Investor Agreement.
(f) No Injunction. There shall not then be in effect any order,
decree or injunction prohibiting the consummation of the purchase of the
Purchased Shares by the Investor.
The obligation of the Company to perform, fulfill and carry out
its agreements, undertakings and obligations herein made or expressed or to be
performed, fulfilled or carried out on the Closing Date shall not be subject to
a condition precedent that the Merger Agreement be in full force and effect and
the Closing shall take place whether or not the Merger Agreement shall have been
terminated.
Section 5.02. Conditions to the Obligation of the Investor
The obligation of the Investor to perform, fulfill or carry out
its agreements, undertakings and obligations herein made or expressed to be
performed, fulfilled or carried out on the Closing Date is and shall be subject
to fulfillment of or compliance with, on or prior to the Closing Date, the
following conditions precedent, any of which may be waived by the Investor, in
its sole discretion, in whole or in part:
(a) Representations and Warranties. The representation and
warranty of the Company set forth in Section 2.07(a) of the Merger Agreement (as
incorporated herein pursuant to Section 4.01(a)) shall have been true and
correct on the date hereof and on and as of the Closing Date as though made on
the Closing Date; and the other representations and warranties of the Company
set forth in this Agreement (including the other representations and warranties
incorporated herein pursuant to Section 4.01(a)) shall have been true and
correct on the date hereof and on and as of the Closing Date as though made on
the Closing Date (except to the extent that any representation or warranty
expressly speaks as of an earlier date, in which case it shall be true and
correct as of such date) except (i) for changes permitted under Section 4.01 of
the Merger Agreement hereof or otherwise contemplated by the Merger Agreement,
and (ii) for such failures to be true and correct which in the aggregate would
not reasonably be expected to result in a Material Adverse Effect on Xxxxxx.
(b) HSR Act; FCC. The waiting periods, if applicable, of the HSR
Act shall have expired or been terminated. Subject to Section 2.02(a), any
required approval or waiver of the FCC shall have been obtained; provided that
any order with respect to any such approval or waiver shall not be required to
be a final order.
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(c) Stock Certificates. The Company shall have delivered to the
Investor duly executed and issued stock certificates representing the Purchased
Shares as required hereunder.
(d) No New Statutes. No statute, rule or regulation shall have
been enacted by any state or Federal government or governmental agency in the
United States which would render the consummation of the purchase of the
Purchased Shares by the Investor unlawful.
(e) Other Agreements. (i) The Company and certain principal
stockholders of the Company shall have entered into the First Amended and
Restated Voting Agreement, and (ii) the Company shall have entered into the
Investor Agreement.
(f) No Injunction. There shall not then be in effect any order,
decree or injunction prohibiting the consummation of the purchase of the
Purchased Shares by the Investor.
The obligation of the Investor to perform, fulfill and carry out
its agreements, undertakings and obligations herein made or expressed or to be
performed, fulfilled or carried out on the Closing Date shall not be subject to
a condition precedent that the Merger Agreement be in full force and effect and
the Closing shall take place whether or not the Merger Agreement shall have been
terminated.
Section 5.03. Second Closing Date Condition
(a) Company Conditions. Notwithstanding anything to the contrary
contained in Section 5.01 or any other provision of this Agreement, in the event
that a portion of the Purchased Shares shall be purchased on the Second Closing
Date pursuant to Section 2.02(a), the obligation of the Company to perform,
fulfill and carry out its agreements, undertakings and obligations herein made
or expressed to be performed, fulfilled or carried out on the Second Closing
Date shall be subject to, on or prior to the Second Closing Date, the
fulfillment and satisfaction of the conditions precedent set forth in Sections
5.01(b), (d) and (f) and the delivery by the Investor to the Company of the
Purchase Price for the Purchased Shares being purchased on the Second Closing
Date and such obligation of the Company shall not be subject to the fulfillment
of or compliance with any other condition precedent by the Investor; it also
being understood and agreed by the parties that such obligation shall remain in
full force and effect notwithstanding the termination of the Merger Agreement.
(b) Investor Conditions. Notwithstanding anything to the contrary
contained in Section 5.02 or any other provision of this Agreement, in the event
that a portion of the Purchased Shares shall be purchased on the Second Closing
Date pursuant to Section 2.02(a), the obligation of the Investor to perform,
fulfill and carry out its agreements, undertakings and obligations herein made
or expressed to be performed, fulfilled or carried out on the Second Closing
Date shall be subject to, on or prior to the Second Closing Date, the
fulfillment and satisfaction of the conditions precedent set forth in
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Sections 5.02(b), (d) and (f) and the delivery by the Company to the Investor of
duly executed and issued stock certificates representing the Purchased Shares
being purchased on the Second Closing Date and such obligation of the Investor
shall not be subject to the fulfillment of or compliance with any other
condition precedent by the Company; it also being understood and agreed by the
parties that such obligation shall remain in full force and effect
notwithstanding the termination of the Merger Agreement.
ARTICLE 6
MISCELLANEOUS
Section 6.01. Legend
The Investor agrees that the share certificate(s) which the
Investor receives from the Company shall be legended with the following legend:
"THE SECURITIES HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED IN THE UNITED STATES OR TO U.S. PERSONS (AS DEFINED IN REGULATION S
UNDER THE ACT), EXCEPT PURSUANT TO AN EXEMPTION FROM REGISTRATION THEREUNDER OR
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT THEREUNDER."
Section 6.02. Expenses
Each party shall bear its own expenses incident to the
negotiation, preparation, authorization and consummation of this Agreement and
the transactions contemplated hereby, including all fees and expenses of its
counsel and accountants, whether or not such transactions are consummated.
Section 6.03. Equitable Remedies
The parties hereto agree that irreparable damage would occur in
the event that any of the provisions of this Agreement were not performed in
accordance with the specific terms of the provisions or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
having jurisdiction, this being in addition to any other remedy to which they
are entitled at law or in equity. Each party agrees that it will not assert, as
a defense against a claim for specific performance, that the party seeking
specific performance has an adequate remedy at law.
Section 6.04. Notices
All notices, claims and other communications hereunder shall be
in writing and shall be made by hand delivery, registered or certified mail
(postage prepaid, return receipt requested), facsimile, or overnight air courier
guaranteeing next day delivery
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(a) if to the Company, to it at:
VoiceStream Wireless Corporation
0000 000xx Xxxxxx X.X.
Xxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy (which shall
not constitute notice) to:
Xxxxxxxx Xxxxxx & Xxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
(b) if to the Investor, to it at :
Deutsche Telecom AG
140 Xxxxxxxxx-Xxxxx Allee
S3113 Bonn
Germany
Attention: Xxxxx Xxxx
Telephone: 00-000-000-00000
Facsimile: 49-228-181-44177
with a copy (which shall
not constitute notice) to:
Xxxxxx Xxxxxxxx, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telephone: 000-000-0000
Facsimile: 000-000-0000
with a copy (which shall
not constitute notice) to:
Hengeler Xxxxxxx Xxxxxxx Xxxxx
Trinkausstrasse
D-40213 Dusseldorf
Germany
Attention: Xx. Xxxxxx Xxxxxx
Telephone:
Facsimile:
13
or at such other address as any party may from time to time furnish to the other
parties by a notice given in accordance with the provisions of this Section
6.04. All such notices and communications shall be deemed to have been duly
given at the time delivered by hand, if personally delivered; when receipt is
confirmed, if sent by facsimile; and the next Business Day after timely delivery
to the courier, if sent by an overnight air courier service guaranteeing next
day delivery.
Section 6.05. Entire Agreement
This Agreement, together with the Schedules annexed hereto,
contains the entire understanding among the parties hereto concerning the
subject matter hereof and this Agreement may not be changed, modified, altered
or terminated except by an agreement in writing executed by the parties hereto.
Any waiver by any party of any of its rights under this Agreement or of any
breach of this Agreement shall not constitute a waiver of any other rights or of
any other or future breach.
Section 6.06. Remedies Cumulative
Except as otherwise provided herein, each and all of the rights
and remedies in this Agreement provided, and each and all of the rights and
remedies allowed at law and in equity in like case, shall be cumulative, and the
exercise of one right or remedy shall not be exclusive of the right to exercise
or resort to any and all other rights or remedies provided in this Agreement or
at law or in equity.
Section 6.07. Governing Law
This Agreement shall be construed in accordance with and subject
to the laws and decisions of the State of New York applicable to contracts made
and to be performed entirely therein.
Section 6.08. Counterparts
This Agreement may be executed in several counterparts hereof,
and by the different parties hereto on separate counterparts hereof, each of
which shall be an original; but such counterparts shall together constitute one
and the same instrument.
Section 6.09. Waivers
No provision in this Agreement shall be deemed waived except by
an instrument in writing signed by the party waiving such provision.
Section 6.10. Successors and Assigns
Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto, in whole
or in party (whether by operation of law or otherwise), without the prior
written consent of the other party; provided, however, that this Agreement may
be assigned by Bega to a corporation or entity owning
14
more than 80% of the ordinary shares of Bega. Subject to the preceding sentence,
this Agreement will be binding upon, inure to the benefit of and be enforceable
by the parties and their respective successors and assigns.
Section 6.11. Further Assurances
The Investor shall, at the request of the Company, and the
Company shall, at the request of the Investor, from time to time, execute and
deliver such other assignments, transfers, conveyances and other instruments and
documents and do and perform such other acts and things as may be reasonably
necessary or desirable for effecting complete consummation of this Agreement and
the transactions herein contemplated.
Section 6.12. Disclosures
(a) Confidentiality. Each of the Investor and the Company
acknowledges and confirms in connection with the negotiation of this Agreement
and the execution hereof that the parties hereto have furnished and will furnish
to one another certain materials, information, data and other documentation
("Disclosures") concerning their business, financial condition and operations
which are proprietary and confidential. Each party acknowledges the party
disclosing such Disclosures considers them secret and confidential and asserts a
proprietary interest therein. Accordingly, each of the Investor and the Company
covenants and agrees that it shall maintain all Disclosures made by another
party in strict confidence and shall not use such Disclosures for its own
benefit or disclose them to third parties, except to its agents,
representatives, bankers, investment bankers, counsel and employees involved in
evaluating the transactions contemplated by this Agreement, its partners (and
the partners or other security holders thereof), lenders, investors and
potential investors or as otherwise required by law (including the requirements
of the Company to disclose such terms under the Securities Act, the Exchange Act
or under the rules of NASDAQ or any securities exchange on which the securities
of the Company are registered; and including the requirement of the Investor or
any of its Affiliates to disclose such terms under the securities laws of
Germany, or under the rules of the Frankfurt Stock Exchange).
(b) Public Announcements. No public announcement by any party
hereto with regard to the transactions contemplated hereby or the material terms
hereof shall be issued by any party without the mutual prior consent of the
other parties, except that in the event the parties are unable to agree on a
press release and legal counsel for one party is of the opinion that such press
release is required by law and such party furnishes the other party a written
opinion of outside legal counsel, or other counsel reasonably acceptable to the
party being furnished such opinion, to that effect, then such party may issue
the legally required press release.
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Section 6.13. Termination
(a) Events Triggering Termination. This Agreement may be
terminated and the transactions contemplated hereby may be abandoned, without
further obligation of the Company, or the Investor, at any time as follows:
(i) by mutual written consent duly authorized by the boards
of directors of the Company and the Investor;
(ii) by the Company or the Investor if the consummation of
the transactions contemplated hereby shall be prohibited by a
final, non-appealable order, decree or injunction of a court of
competent jurisdiction; it being understood and agreed that any
such termination shall not create any right of rescission or in
any matter affect any prior purchase of a portion of the
Purchased Shares on the Closing Date pursuant to Section 2.02(a);
or
(iii) by the Company or the Investor if the Closing Date as
to at least a portion or the Purchased Shares shall not have
occurred on or prior to December 31, 2001 or such later date, if
any, as the Company and the Investor shall agree in writing,
provided, that the party exercising such right is not in default
of its obligations under this Agreement in a manner which results
in the failure to satisfy the conditions to the transactions
contemplated hereby of the other parties; it being understood and
agreed that any such termination shall not create any right of
rescission or in any matter affect any prior purchase of a
portion of the Purchased Shares on the Closing Date pursuant to
Section 2.02(a).
(b) No Further Obligation. In the event of a termination of this
Agreement, no party hereto shall have any liability or further obligation to any
other party to this Agreement except that nothing herein will relieve any party
from liability for any breach of this Agreement.
Section 6.14. Jurisdiction; Consent to Service of Process
The Investor hereby irrevocably appoints United Corporate
Services, Inc., at its office at 00 Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxx Xxxx 00000,
Xxxxxx Xxxxxx of America, and the Company hereby irrevocably appoints United
Corporate Services, Inc., at its office at 00 Xxxx Xxxxxx, Xxxxx Xxxxxx, Xxx
Xxxx 00000, Xxxxxx Xxxxxx of America, its lawful agent and attorney to accept
and acknowledge service of any and all process against it in any action, suit or
proceeding arising in connection with this Agreement, and upon whom such process
may be served, with the same effect as if such party were a resident of the
State of New York and had been lawfully served with such process in such
jurisdiction, and waives all claim of error by reason of such service, provided,
however that in the case of any service upon such agent and attorney, the party
effecting such service shall also deliver a copy thereof to the other party at
the address and in the manner specified in Section 6.03. In the event that such
agent and attorney resigns or otherwise becomes incapable of acting as such,
such party will appoint a successor agent and attorney in
16
New York, reasonably satisfactory to the other party, with like powers. Each
party hereby irrevocably submits to the exclusive jurisdiction of the United
States District Court for the Southern District of New York and any court of the
State of New York located in the City of New York in any such action, suit or
proceeding, and agrees that any such action, suit or proceeding shall be brought
only in such court (and waives any objection based on forum non conveniens or
any other objection to venue therein), provided, however, that such consent to
jurisdiction is solely for the purpose referred to in this Section 6.14 and
shall not be deemed to be a general submission to the jurisdiction of said
courts or the State of New York other than for such purpose.
Section 6.15. Waiver of Immunity. The Investor agrees that, to
the extent that it or any of its Subsidiaries or any of its property or the
property of its Subsidiaries is or becomes entitled to any immunity on the
grounds of sovereignty or otherwise based upon its status as an agency or
instrumentality of the government from any legal action, suit or proceeding or
from set-off 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, from execution pursuant to a judgment or an
arbitral award or from any other legal process in any jurisdiction, it, for
itself and its property, and for each of its Subsidiaries and its property,
expressly, irrevocably and unconditionally waives, and agrees not to plead or
claim, any such immunity with respect to matters arising with respect to this
Agreement or the subject matter hereof (including any obligation for the payment
of money). The Investor agrees that the foregoing waiver 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 the Investor or any of its Subsidiaries with respect
to this Agreement or the subject matter hereof (including any obligation for the
payment of money).
17
IN WITNESS WHEREOF, the parties hereto have duly executed this
Agreement as of the date first above written.
VOICESTREAM WIRELESS CORPORATION
By: /s/ Xxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Chief Executive Officer
DEUTSCHE TELEKOM AG
By: /s/ Xxxxx Xxxx
--------------------------------------------
Name: Xxxxx Xxxx
Title: Head of International Legal Affairs
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