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Exhibit 3
WATER WORKS AGREEMENT
POWERTEL STOCKHOLDERS AGREEMENT
This Powertel Stockholders Agreement (this "AGREEMENT") dated as of
August 26, 2000 is by and among VoiceStream Wireless Corporation, a Delaware
corporation ("VOICESTREAM"), and the entity or entities set forth on Schedule I
hereto (each, a "STOCKHOLDER" and, collectively, the "STOCKHOLDERS").
WHEREAS, simultaneously with the execution of this Agreement,
Powertel, Inc., a Delaware corporation ("POWERTEL") and VoiceStream are entering
into an Agreement and Plan of Reorganization (as amended or modified from time
to time, the "VOICESTREAM REORGANIZATION AGREEMENT"), dated as of the date
hereof, providing for, among other things, the merger of a subsidiary of
VoiceStream with and into Powertel and the consummation of certain other
transactions (collectively, the "VOICESTREAM REORGANIZATION") if, but only if,
the DT Merger (as defined below) is not consummated;
WHEREAS, simultaneously with the execution of this Agreement,
Powertel and Deutsche Telekom AG, an Aktiengesellschaft organized and existing
under the laws of the Federal Republic of Germany ("DT") are entering into an
Agreement and Plan of Merger dated as of the date hereof providing for, among
other things, the merger (the "DT MERGER") of a subsidiary of DT with and into
Powertel (as amended or modified from time to time, the "DT MERGER AGREEMENT");
and
WHEREAS, VoiceStream has agreed to enter into the VoiceStream
Reorganization Agreement only if all the parties hereto enter into this
Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained herein
and in the VoiceStream Reorganization Agreement, the parties hereto, intending
to be legally bound hereby, agree as follows:
1. CERTAIN DEFINITIONS. This Agreement is one of the Powertel
Stockholders Agreements referred to in the recitals to the VoiceStream
Reorganization Agreement. Capitalized terms used but not defined in this
Agreement are used in this Agreement with the meanings given to such terms in
the VoiceStream Reorganization Agreement. In addition, for purposes of this
Agreement, the following terms shall have the following meanings:
"BENEFICIALLY OWNED" or "BENEFICIAL OWNERSHIP" shall include, with
respect to any securities, the beneficial ownership of such securities by a
Stockholder and by any direct or indirect Subsidiary of a Stockholder.
"VOICESTREAM/DT MERGER AGREEMENT" means the Agreement and Plan of
Merger between VoiceStream and DT dated as of July 23, 2000, as it may be
amended or modified from time to time.
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"VOICESTREAM PRINCIPAL STOCKHOLDER'S SHARES" shall mean the number
of shares of VoiceStream Common Stock or VoiceStream preferred stock owned of
record or beneficially owned by a VoiceStream Principal Stockholder (including
such shares as are owned of record or beneficially owned by any direct or
indirect Subsidiary of such VoiceStream Principal Stockholder), together with
any shares of VoiceStream Common Stock or other voting capital stock of
VoiceStream owned of record or beneficially owned or acquired by such
VoiceStream Principal Stockholder or direct or indirect Subsidiary thereof after
the date hereof, whether upon the exercise of warrants or options, conversion of
VoiceStream preferred stock or any convertible securities or otherwise.
"TRANSFER" means, with respect to any security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or other disposition of such
security or the Beneficial Ownership thereof, the offer to make such a sale,
transfer, or other disposition, and each agreement, arrangement or
understanding, whether or not in writing, to effect any of the foregoing.
2. REPRESENTATIONS, WARRANTIES AND COVENANTS OF EACH STOCKHOLDER.
Each Stockholder hereby represents and warrants, severally and not jointly, to
VoiceStream, solely with respect to itself, as of the date hereof, as follows:
2.1 TITLE. As of the date hereof, such Stockholder is the sole
record and Beneficial Owner of the number of shares of Powertel Stock set forth
opposite such Stockholder's name on SCHEDULE I attached hereto (with respect to
each Stockholder, such Stockholder's "EXISTING SHARES" and, together with the
record ownership or Beneficial Ownership of any shares of Powertel Stock or
other voting capital stock of Powertel acquired after the date hereof, whether
upon the exercise of warrants or options, conversion of the Powertel 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 Powertel Stock, as the case may be, set forth opposite such Stockholder's
name on SCHEDULE I attached hereto (with respect to each Stockholder, such
Stockholder's "EXISTING RIGHTS" and, together with record ownership or
Beneficial Ownership of any warrants, options or other rights to acquire or
receive such shares of Powertel Stock or other voting capital stock of Powertel
acquired after the date hereof, such Stockholder's "RIGHTS"). Such Stockholder
is the lawful owner of such Existing Shares and Existing Rights, free and clear
of all liens, claims, charges, security interests or other encumbrances, except
as disclosed on SCHEDULE I. As of the date hereof, such Existing Shares
constitute all of the capital stock of Powertel Beneficially Owned or owned of
record by such Stockholder (excluding the Existing Rights) and such Stockholder
does not own of record or Beneficially Own or have any 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 Powertel Stock or any other securities convertible into or exchangeable or
exercisable for shares of Powertel Stock, except pursuant to such Existing
Rights.
2.2 RIGHT TO VOTE. Except as disclosed on SCHEDULE I, such
Stockholder has, with respect to all of such Stockholder's Existing Shares, and
(subject to the provisions of
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Section 3.1) will have at the Powertel Stockholders Meeting, with respect to all
of such Stockholder's Shares listed on Schedule I and acquired subsequent to the
date hereof and prior to the record date for the Powertel Stockholders 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 its obligations as provided by SECTION 4 and
SECTION 5 hereof. Each Stockholder hereby revokes any and all proxies with
respect to such Stockholder's Existing Shares or Existing Rights to the extent
they are inconsistent with such Stockholder's obligations under this Agreement.
2.3 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).
2.4 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, law or regulation to which such Stockholder
is a party or by which such Stockholder or any of its assets is bound.
2.5 RELIANCE. Such Stockholder understands and acknowledges that
VoiceStream is entering into the VoiceStream Reorganization Agreement in
reliance upon such Stockholder's execution, delivery and performance of this
Agreement.
3. RESTRICTION ON TRANSFER; OTHER RESTRICTIONS.
3.1 Each Stockholder agrees not to Transfer or agree to Transfer any
Shares or Rights owned of record or Beneficially Owned by such Stockholder,
except as otherwise permitted by this SECTION 3 or pursuant to the VoiceStream
Reorganization Agreement or the DT 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 VoiceStream's prior written consent.
3.2 From the date hereof until the date of the Powertel Stockholders
Meeting, each Stockholder agrees not to Transfer any Shares or Rights owned of
record or Beneficially Owned by such Stockholder, provided, however, that this
SECTION 3.2 shall cease to be of any force or effect immediately upon
termination of the VoiceStream Reorganization Agreement.
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3.3 From the date hereof until the date of the Powertel Stockholders
Meeting, Stockholder agrees, 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 Powertel.
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 it owns of record or that are Beneficially
Owned as of the record date for the Powertel Stockholders Meeting at the
Powertel Stockholders Meeting and at any other annual or special meeting of
stockholders of Powertel or action by written consent where matters relating to
the VoiceStream Reorganization arise (a) in favor of the VoiceStream
Reorganization and the VoiceStream Reorganization Agreement and approval of the
terms thereof and each of the other transactions contemplated thereby, and (b)
against, and will not consent to, (i) approval of any Alternative Transaction or
(ii) the liquidation or winding up of Powertel. The obligations of each such
Stockholder specified in this SECTION 4 shall apply whether or not the Board of
Directors of Powertel 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 Joint Proxy Statement, so that
such proxy card is received by Powertel, as prescribed by the Joint Proxy
Statement, not later than the fifth Business Day preceding the day of the
Powertel Stockholders Meeting, (b) to vote, by completing such proxy card but
not otherwise, all the Shares it owns of record or Beneficially Owns as of the
record date for the Powertel Stockholders Meeting (i) in favor of the
VoiceStream Reorganization and the VoiceStream Reorganization 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 authorize or permit any of their respective
Subsidiaries to, nor shall they authorize or permit 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, (i) solicit,
initiate or encourage (including by way of furnishing information), or knowingly
take any other action designed to facilitate, any Alternative Transaction, or
(ii) participate in any 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 or advisor to
Powertel to take any action permissible under the VoiceStream Reorganization
Agreement.
7. REGISTRATION RIGHTS. The Stockholder has no registration rights
or rights of first refusal, contractual preemptive rights or similar rights with
respect to the Shares.
8. ADDITIONAL SHARES AND ADDITIONAL RIGHTS. If, after the date
hereof, a Stockholder acquires record ownership or Beneficial Ownership of any
additional shares of capital stock of Powertel (any such shares, "ADDITIONAL
SHARES"), including, without limitation,
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upon exercise of any option, warrant or right to acquire shares of capital stock
of Powertel through the conversion of the Powertel Preferred Stock or through
any stock dividend or stock split, or record ownership or Beneficial Ownership
of any additional options, warrants or rights to acquire shares of capital stock
of Powertel (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 or Additional
Rights without action by any person immediately upon the acquisition by any
Stockholder of record ownership or Beneficial Ownership of such Additional
Shares or Additional Rights, respectively.
9. Intentionally omitted.
10. MISCELLANEOUS.
10.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and,
except for the Powertel Stockholders Agreement, as defined in the DT Merger
Agreement and the Stockholders Agreements as defined in the VoiceStream/DT
Merger Agreement, supercedes all other prior agreements and understandings both
written and oral, among the parties hereto with respect to the Transfer or
voting of Shares as contemplated hereby. This Agreement is not intended to
confer upon any Person other than the Parties hereto any rights or remedies
hereunder.
10.2 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.
10.3 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.
10.4 EXECUTION IN COUNTERPARTS; SEVERAL OBLIGATIONS. This Agreement
may be executed in counterparts each of which shall be an original with the same
effect as if the signatures hereto and thereto were upon the same instrument.
The obligations of the Stockholders hereunder are several and not joint and the
covenants and agreements of the Stockholders herein are made only in their
capacity as stockholders of Powertel and not in any other capacity (including as
directors or officers).
10.5 SPECIFIC PERFORMANCE. Each Stockholder agrees with VoiceStream
as to itself that if for any reason such Stockholder fails to perform any of its
agreements or obligations under this Agreement, irreparable harm or injury to
VoiceStream 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, VoiceStream shall be entitled, in
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addition to any other remedy available at law, equity or otherwise, to
injunctive and other equitable relief. The provisions of this SECTION 10.5 are
without prejudice to any other rights or remedies, whether at law or in equity,
VoiceStream may have against such Stockholder for any failure to perform any of
its agreements or obligations under this Agreement.
10.6 AMENDMENTS; TERMINATION.
(a) This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
(b) The provisions of this Agreement (other than SECTIONS 3, 4 AND
5) shall terminate upon the earliest to occur of (i) the Effective Time, (ii)
the date that is two (2) years after the date hereof, and (iii) the termination
of the VoiceStream Reorganization Agreement. The provisions of SECTION 3.2 of
this Agreement shall terminate when the applicable time periods set forth
therein lapse and the remaining provisions of SECTION 3 of this Agreement shall
terminate when SECTION 3.2 of this Agreement has terminated. The provisions of
SECTIONS 4 AND 5 of this Agreement shall terminate upon the earlier to occur of
the Effective Time and termination of the VoiceStream Reorganization Agreement.
10.7 GOVERNING LAW; SUBMISSION AND JURISDICTION.
(a) 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.
(b) Each of the parties hereof 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, (i) 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 10.7(b) 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 (ii) 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 10.9 shall be deemed effective
service of process on such party.
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10.8 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.
10.9 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):
(a) if to a Stockholder, at such Stockholder's address appearing on
Schedule I hereto or at any other address that such Stockholder may have
provided in writing to VoiceStream, Powertel and the other Stockholders.
(b) if to VoiceStream:
VoiceStream Wireless Holding Corporation
0000 000xx Xxxxxx XX, Xxxxx 000
Xxxxxxxx, XX 00000
Attn: General Counsel
Telecopy No.: 000-000-0000
with a copy to:
Xxxxxxx Xxxxx & Xxxxx LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Telecopy No: 206-623-7022
(the remainder of this page is intentionally left blank)
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IN WITNESS WHEREOF, the parties hereto have executed this Powertel
Stockholders Agreement as of this 26th day of August, 2000.
VOICESTREAM WIRELESS CORPORATION
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: Executive Vice President - Finance,
Strategy and Development
STOCKHOLDERS:
AMERICAN WATER
WORKS COMPANY
By: /s/ W. Xxxxxxx Xxxx
Name: W. Xxxxxxx Xxxx
Title: General Counsel and Secretary
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SCHEDULE I
Number and Description
Stockholder Name and Address Number of Existing Shares of Existing Rights
---------------------------- ------------------------- ----------------------
American Water Works Company 607,612 Shares of Powertel
0000 Xxxxxx Xxx Xxxx Common Stock
XX Xxx 0000
Xxxxxxxx, XX 00000
