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.
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(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.
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(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, Hutchinson
Telecommunications PCS (USA) Limited and VoiceStream, the Investor Agreement,
dated as of June 23, 1999 by and among Hutchinson 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.
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(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, Rosen & Katz
51 West 52nd Street
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New York, New York 10019
Attention: Daniel A. Neff
Facsimile: 212-403-2000
And a copy to:
Friedman, Kaplan & Seiler LLP
875 Third Avenue
New York, New York 10022
Attention: Barry A. Adelman
Facsimile: 212-355-6401
(ii) if to DT:
Deutsche Telekom AG
140 Friedrich-Ebert-Allee
53113 Bonn
Germany
Attention: Kevin Copp
Facsimile: +49-228-181-44177
with a copy to:
Cleary, Gottlieb, Steen & Hamilton
One Liberty Plaza
New York, New York 10006
Attention: Robert P. Davis
Facsimile: (212) 225-3999
(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/ Kevin Copp
---------------------------
Name: Kevin Copp
Title: Head of International Legal
Affairs
GS CAPITAL PARTNERS, L.P.
By: GS Advisors, L.L.C.,
General Partner
By: /s/ Terence M. O'Toole
--------------------------
Name: Terence M. O'Toole
Title: Vice President
THE GOLDMAN SACHS GROUP, INC.
By:/s/ Terence M. O'Toole
--------------------------
Name: Terence M. O'Toole
Title: Attorney-in-Fact
BRIDGE STREET FUND 1992, L.P.
By: Stone Street 1992, L.L.C.,
Managing General Partner
By:/s/ Terence M. O'Toole
--------------------------
Name: Terence M. O'Toole
Title: Vice President
STONE STREET FUND 1992, L.P.
By: Stone Street 1992, L.L.C.,
Managing General Partner
By:/s/ Terence M. O'Toole
--------------------------
Name: Terence M. O'Toole
Title: Vice President
<PAGE>
EXHIBIT A
<TABLE>
<CAPTION>
Stockholder Name and Address Number of Existing Shares Number and Description of Existing Rights
---------------------------- ------------------------- -----------------------------------------
<S> <C> <C>
GS Capital Partners, L.P. 8,986,738
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-902-3000
The Goldman Sachs Group, Inc. 68,821
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-357-5505
Bridge Street Fund 1992, L.P. 273,069
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-357-5505
Stone Street Fund 1992, L.P. 470,401
c/o Goldman, Sachs & Co.
85 Broad Street
New York, NY 10004
Attention: Terence O'Toole
Fax: 212-357-5505
9,799,029
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