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Exhibit 24
[TDS Letterhead]
September 19, 2000
By Telecopy x00-000-000-00000
Deutsche Telekom AG
000 Xxxxxxxxx-Xxxxx-Xxxxx
00000 Xxxx, Xxxxxxx
Attention: Xxxxx Xxxx
RE: Side Letter Agreement - Procedures for Delivery of Merger Consideration
Ladies and Gentlemen:
Reference is made to the Side Letter Agreement dated as of July
23, 2000 ("Side Letter Agreement") between Telephone and Data Systems, Inc.
("TDS") and Deutsche Telekom AG ("DT"). Capitalized terms used but not otherwise
defined herein have the meanings set forth in the Side Letter Agreement or, if
not defined therein, the Stockholder Agreement or, if not defined therein, the
Merger Agreement (as such terms are defined in the Side Letter Agreement).
TDS has identified means described in this letter pursuant to
which the Cash Consideration (as defined in paragraph 6 below) and DT ADRs or
certificates for DT ordinary shares may be delivered on the Closing Date or as
promptly thereafter as reasonably possible.
1. Prior to the Closing Date, TDS and DT shall use their reasonable
best efforts to establish arrangements with the Escrow Agent relating to the
following. If, notwithstanding such efforts, TDS and DT are unable to establish
certain of the following contemplated arrangements with the Escrow Agent, TDS
and DT shall in good faith use their reasonable best efforts to establish
arrangements with the Escrow Agent that, to the fullest extent possible, achieve
the purposes and intentions of this Letter Agreement.
2. DT shall use reasonable best efforts to cause the Escrow Agent to
deliver to TDS copies of the Election Form and Letter of Transmittal no later
than 40 days prior to the anticipated Effective Time.
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3. Prior to the fifth Business Day prior to the first scheduled
Closing Date, TDS shall make a valid election and deliver its completed Election
Form and Letter of Transmittal in respect of all of its VoiceStream Common
Shares to the Escrow Agent together with its stock certificates representing
VoiceStream Common Shares to be held in escrow pending the Closing. TDS agrees
not to revoke any Election Forms or Letters of Transmittal submitted to the
Escrow Agent after the fifth Business Day prior to the Election Deadline. The
certificates shall be delivered by TDS to the Escrow Agent's office in New York
City, New York. DT shall use reasonable best efforts to cause the Escrow Agent
to accept and acknowledge in writing its receipt of the stock certificates from
TDS. Concurrently with the delivery of the Election Form and Letter of
Transmittal, TDS shall deliver to DT and the Escrow Agent information on the
denominations and number of DT ADRs and/or certificates for DT Ordinary Shares
to be delivered to TDS and the location or locations of delivery. TDS shall
comply with the requirements of the Election Forms and the Letters of
Transmittal, including without limitation Section 1.06(c) of the Merger
Agreement, except to the extent such requirements in the Election Forms and the
Letter of Transmittal would be inconsistent with the agreements herein.
4. Prior the third Business Day prior to the first scheduled Closing
Date, TDS shall deliver written wire transfer instructions to the Escrow Agent.
5. Prior to the Closing Date, DT shall take all action reasonably
possible to expedite registration of the increase of DT's share capital for the
issuance of the DT Ordinary Shares and the listing thereof on the Frankfurt
Stock Exchange on or promptly after the Closing Date, including arranging for
(i) the appointment of auditors by the court of competent jurisdiction, (ii) the
completion of the auditors' valuation required in connection with the issuance
of DT Ordinary Shares pursuant to the Merger, (iii) preparation and delivery in
draft form to the Commercial Register for informal preclearance of (x) the
valuation report together with resolutions of the Supervisory and/or Management
boards of DT, as required, (y) the subscription statement of the Escrow Agent,
(z) form of the Certificate of Merger to be filed with the Secretary of State of
Delaware and the documents for the effecting and evidencing the transfer of all
shares of the Surviving Corporation by the Escrow Agent to DT (such transfer, if
acceptable to the court, to be subject to a condition so that it becomes
effective upon and simultaneously with or prior to the registration of the
increase of the share capital) as well as all other paperwork related to the
issuance of the DT Ordinary Shares and (iv) preparation and delivery in draft
form to the Frankfurt Stock Exchange for informal preclearance of listing
paperwork.
6. Pursuant to and in accordance with Section 1.04(a) of the Merger
Agreement, prior to and/or immediately after or at the Effective Time, DT shall
deliver to the Escrow Agent the Aggregate Cash Amount, or, if applicable, the
Adjusted Aggregate Cash Amount (the "Cash Consideration"), including any portion
of the Cash Consideration which TDS is entitled to receive under the Merger
Agreement (the "TDS Cash Consideration"), such funds to be delivered by DT in
immediately available funds. DT shall use reasonable best efforts to cause the
registration of the increase of the DT share capital to occur on the Closing
Date or, if this is not possible, as promptly as possible thereafter. DT shall
use reasonable best efforts to cause the Escrow Agent to release the Cash
Consideration promptly after registration of the increase of DT's share capital
so that, if possible, the Cash Consideration will be released on the Closing
Date or, if this is not possible, as promptly as possible thereafter. DT shall
use its reasonable best efforts and cooperate with TDS to cause such TDS Cash
Consideration to be held by the Escrow Agent at its New York City, New
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York office in a separate account with the Escrow Agent. TDS may make
arrangements with the Escrow Agent for the investment and/or transfer of the TDS
Cash Consideration after such funds are released to TDS.
7. Any cash payment in lieu of fractional DT ADRs and fractional DT
Ordinary Shares which TDS may be entitled to receive pursuant to the Merger
Agreement shall be paid to TDS in accordance with Section 1.09 of the Merger
Agreement.
8. On the Closing Date, DT shall file with the Commercial Register
the application to register the increase in capital, including the valuation
report, Supervisory and Management Boards' resolutions, subscription statement
and all other paperwork required for the issuance of DT Ordinary Shares and
shall file with the Frankfurt Stock Exchange all paperwork (not yet filed)
required for admission for listing of the DT Ordinary Shares.
9. Prior to the Closing Date DT shall prepare, and immediately after
the Closing Date DT shall sign and deliver through the Escrow Agent acting
through its branch in Frankfurt am Main to Deutsche Borse Clearing AG (DBC), one
or several global certificates for all of the DT Ordinary Shares to be issued in
the Merger and such shares shall be held by DBC for the Escrow Agent.
10. Not later than one Business Day after registration of the capital
increase, DT shall instruct the Escrow Agent to release the said share
certificates so that they then are deemed to have been issued and shall be held
by the Escrow Agent directly or indirectly for the account of the VoiceStream
stockholders. In this connection, as soon as is reasonably possible, but no
later than the next following Business Day, after registration of the increase
of DT's share capital and after the admission of the DT Ordinary Shares for
trading on the Frankfurt Stock Exchange:
a. to the extent TDS has requested DT Ordinary Shares, DT shall use
its reasonable best efforts to cause the Escrow Agent to deliver
certificates representing such shares to which TDS is entitled to
such person and at such location as TDS may have specified in
writing to the Escrow Agent no later than three Business Days
prior to the Closing Date;
b. to the extent TDS has requested DT ADRs, DT shall use its
reasonable best efforts to cause the Escrow Agent to requisition
from DT's ADR Depositary and deliver DT ADRs representing the
relevant number of shares to such person and at such location as
TDS may have specified in writing to the Escrow Agent no later
than three Business Days prior to the Closing Date.
11. As provided in the Side Letter Agreement, in the event that TDS
Transfers its shares in VoiceStream Common Stock to an Affiliate of TDS (as
permitted by Section 3(a) of the Stockholder Agreement), such Affiliate will
agree in writing to be bound by the terms of this Letter Agreement as well as
the terms of the Stockholder Agreement and the Side Letter Agreement and, in
such event, the procedures outlined in this letter will apply to TDS and such
Affiliate.
12. DT will use reasonable efforts to request the Escrow Agent to
comply with the procedures specified herein for the benefit of other VoiceStream
stockholders.
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13. This Letter Agreement supersedes in all respects paragraph 6 of
the Side Letter Agreement, which paragraph shall have no further force and
effect.
If you agree with the foregoing, please indicate your agreement
by signing below.
TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President and Treasurer
Agreed to and Accepted as of
the date set forth above by
DEUTSCHE TELEKOM AG
By: /s/ Xxxxx Xxxx
-----------------------
Name: Xxxxx Xxxx
Title: Head of International Legal Affairs
cc: Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Facsimile: (000) 000-0000
Hengeler Xxxxxxx Xxxxxxx Xxxxx
Xxxxxxxxxxxxxxx 0
X-00000 Xxxxxxxxxx, Xxxxxxx
Attention: Xx. Xxxxxx Xxxxxx
Xxxxxxxxx: x00-000-00-00-000
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