Deutsche Telekom AG – ‘SC 13D/A’ on 9/8/00 re: T Mobile USA – EX-19

On:  Friday, 9/8/00, at 3:10pm ET   ·   Accession #:  950123-0-8389   ·   File #:  5-58637

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Amendment to General Statement of Beneficial Ownership   —   Schedule 13D
Filing Table of Contents

Document/Exhibit                   Description                      Pages   Size 

 1: SC 13D/A    Amendment No. 1 to Schedule 13D                        6     19K 
 2: EX-19       Stockholders Agreement Re Allen & Company and Dt      10     35K 
 3: EX-20       Stockholder Agreement Re Doug Smith and Dt            10     37K 

EX-19   —   Stockholders Agreement Re Allen & Company and Dt

EX-19
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                                                                    EXHIBIT 19

                                                         ALLEN & CO. AGREEMENT

STOCKHOLDERS AGREEMENT

   Stockholders Agreement (this "Agreement"), dated as of August 25,
2000, between Allen & Company Incorporated, a New York corporation              
("Stockholder" ), and Deutsche Telekom AG, an Aktiengesellschaft organized and  
existing under the laws of the Federal Republic of Germany ("DT").              

   WHEREAS, VoiceStream Wireless Corporation, a Delaware corporation
("VoiceStream"), and DT have entered into an Agreement and Plan of Merger (the  
"Merger Agreement"), dated as of July 23, 2000, providing, among other things,  
for the merger of a subsidiary of DT with and into VoiceStream.                 

 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 purposes of this Agreement, the following terms shall have
the following meanings:                                                         

   "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.                                

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2.   Representations; Warranties and Covenants of Stockholder.
Stockholder hereby represents and warrants to DT as follows:                    

       (a)  Title. As of the date hereof, Stockholder is the sole record and
beneficial owner of the number of shares of VoiceStream Common Stock set forth  
opposite such Stockholder's name on Exhibit A attached hereto (the "Restricted  
Shares"). Stockholder is the lawful owner of the Restricted Shares, free and    
clear of all liens, claims, charges, security interests or other encumbrances,  
except as disclosed on Exhibit A.                                               

    (b)  Authority. 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 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 Stockholder and constitutes a valid and binding agreement of       
Stockholder enforceable against 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).                                                

     (c)  Conflicting Instruments. Neither the execution and delivery of
this Agreement nor the performance by 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         
Stockholder is a party or by which Stockholder (or any of its assets) is bound. 

3.   Restriction on Transfer; Other Restrictions.             

  (a)  Stockholder agrees not to Transfer or agree to Transfer any
Restricted Shares, except as otherwise permitted by this Section 3 or pursuant  
to the Merger Agreement, Transfers to any Affiliate of 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. For the avoidance of doubt, (i) the restrictions set forth in  
this Agreement shall only apply to the Restricted Shares disclosed on Exhibit A 
hereto (and DT Securities issued in respect thereof) and shall not apply to any 
other securities of VoiceStream or DT owned by Stockholder or any Affiliate,    
officer, director or stockholder of Stockholder and (ii) because Stockholder    
owns other securities of VoiceStream in addition to the Restricted Shares,      
Stockholder shall be deemed to be in compliance with this Agreement as long as  
Stockholder complies with this Agreement with respect to any of its 500,000     
shares of VoiceStream Common Stock which Stockholder designates as the          
Restricted Shares.                                                              

      (b)  From the date hereof until the later of January 1, 2001 and the
date of the VoiceStream Stockholders' Meeting, Stockholder agrees not to        
Transfer any Restricted Shares, 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, Stockholder may Transfer of the Restricted 
Shares only up to 17.5% of such Stockholder's Total Number of Restricted        
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, Stockholder agrees not to Transfer any DT    
Securities or DT Derivative Securities received by Stockholder on account of    
Restricted Shares not otherwise disposed of as permitted by this Agreement.     

(e)  From the day following the three month anniversary of the
Effective Time, through and including the six month anniversary of the          
Effective Time, Stockholder may Transfer only up to 40% of such Stockholder's   
Total Number of Restricted Shares.                                              

      (f)  For the avoidance of doubt, the portions of Stockholder's Total
Number of Restricted Shares permitted to be Transferred pursuant to Section     
3(c) and Section 3(e) are (i) separate and not cumulative such that if          
Stockholder does not fully utilize the permission to Transfer up to 17.5% of    
such Stockholder's Total Number of Restricted Shares pursuant to Section 3(c),  
Stockholder shall not be permitted to Transfer more than 40% of such            
Stockholder's Total Number of Restricted 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
Restricted Shares" is equal to the number of Restricted Shares disclosed on     
Exhibit A hereto. For purposes of Section 3(e), Stockholder's Total Number of   
Restricted Shares is equal to the number of DT Securities which the Stockholder 
would have been entitled to receive as Merger Consideration in the Merger in    
respect of the Total Number of Restricted 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).                                     

   (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)  [Reserved.]                                              

     (j) 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                                                   

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effect, directly or indirectly, any short sales of any Restricted Shares except 
in accordance with the limitations of Section 3(c).                             

       (k)  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 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 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.   [Reserved.]                                              

5.   [Reserved.]                                              

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   6.   No Solicitation. From and after the date hereof, Stockholder
shall not, nor shall it permit any of its respective Subsidiaries to, nor shall 
it authorize or instruct any of its respective officers, directors, members or  
employees to, and shall use its reasonable best efforts to cause any investment 
banker, financial advisor, attorney, accountants or other representatives       
retained by it or any of its respective Subsidiaries not to, directly or        
indirectly through another person, on its 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 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 and 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. Stockholder 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,         
Stockholder shall not exercise any registration rights, provided that           
Stockholder may exercise any registration rights it may have with respect to    
securities of VoiceStream other than the Restricted Shares. 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.   [Reserved.]                                              

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.                                                            

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    (e)  Specific Performance. Stockholder agrees with DT as to itself
that if for any reason 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, Stockholder agrees that, in seeking to enforce this Agreement      
against 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 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 Section 3) 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.                                                       

(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.                              

   (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)          

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    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 Stockholder, at Stockholder's address appearing on Annex A
hereto or at any other address that Stockholder may have provided in  
writing to DT,                                                        

with copies to:                                     

Wachtell, Lipton, Rosen & Katz            
51 West 52nd Street                       
New York, New York 10019                  

Attention: Daniel A. Neff                 
Facsimile:  212-403-2000                  

Friedman, Kaplan & Seiler LLP             
875 Third Avenue                          
New York, New York  10022                 

Attention: Barry A. Adelman               
Facsimile: 212-355-6401                   

Heller Ehrman White & McAuliffe           
711 Fifth Avenue, 4th Floor               
New York, New York  10022                 

Attention:  Peter DiIorio                 
Facsimile: 212-832-3353                   

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(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 25th day of August, 2000.                                  

DEUTSCHE TELEKOM AG     

By: /s/ Kevin Copp      
                        ----------------------------------------
Name: Kevin Copp
                          Title: Head of International Legal Affairs

    ALLEN & COMPANY INCORPORATED

By: /s/ Richard Fields  
                        ----------------------------------------
    Name: Richard Fields
                      Title: Managing Director and Executive
Vice President  

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                                                                     EXHIBIT A

Stockholder Name and Address                Number and Description of Restricted
              Shares

Allen & Company Incorporated                500,000                             
c/o Richard L. Fields, Managing Director                                        
711 Fifth Avenue                                                                
New York, NY 10022                                                              

Dates Referenced Herein   and   Documents Incorporated by Reference

				Referenced-On Page
This ‘SC 13D/A’ Filing		Date		First		Last			Other Filings
		9/1/01		3
		8/31/01		3					4,  8-K
		8/1/01		3
		7/31/01		3
		1/1/01		2		5
Filed on:		9/8/00							8-K
		8/25/00		1
		7/23/00		1					3,  8-K
		5/3/99		5
		6/29/95		5
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