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Amendment No. 1, dated as of April 13, 2001 (this "AMENDMENT"),
to the Agreement and Plan of Merger (the "MERGER AGREEMENT"), dated as of August
26, 2000, as amended and restated as of February 8, 2001 among Deutsche Telekom
AG, an AKTIENGESELLSCHAFT organized and existing under the laws of the Federal
Republic of Germany ("DT"), Powertel, Inc., a Delaware corporation ("POWERTEL"),
and Bega II, Inc., a Delaware corporation formed by DT ("MERGER SUB") (each a
"PARTY" and, together, the "PARTIES"). Capitalized terms used but not otherwise
defined herein shall have the meanings ascribed to such terms in the Merger
Agreement.
W I T N E S S E T H:
WHEREAS, DT, Merger Sub and Powertel have entered into the Merger
Agreement; and
WHEREAS, DT, Merger Sub and Powertel desire to amend the Merger
Agreement, in accordance with Section 7.04 thereof;
NOW THEREFORE, in consideration of the premises and the mutual
agreements and covenants hereinafter set forth, DT, Merger Sub and Powertel
agree as follows:
1. Amendment to Section 1.05(d). Section 1.05(d) of the Merger
Agreement is hereby deleted and amended to read in its entirety as follows: "(d)
Conversion of Merger Sub Common Stock. Each share of Merger Sub Common Stock,
issued and outstanding immediately prior to the Effective Time shall, by virtue
of the Merger and without any action on the part of the holder thereof, be
converted into a number of newly issued, fully-paid and non-assessable shares of
common stock, par value $0.000001 per share, of the Surviving Corporation
("SURVIVING CORPORATION COMMON STOCK") such that the total number of shares of
Surviving Corporation Common Stock outstanding immediately following the
Effective Time shall be equal to the total number of Adjusted Fully Diluted
Shares (as defined below) outstanding immediately prior to the Effective Time."
2. Authorization. Each Party hereto represents to the other that
(a) it has all necessary corporate power and authority to enter into this
Amendment; (b) its execution and delivery of this Amendment have been duly
authorized by all requisite corporate action; and (c) it has duly executed and
delivered this Amendment.
3. Merger Agreement Remains in Effect. Except as expressly
amended by this Amendment, the Merger Agreement remains in full force and effect
and nothing in this Amendment shall otherwise affect any other provision of the
Merger Agreement or the rights and obligations of the Parties thereto.
4. Counterparts. This Amendment may be executed in one or more
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same instrument.
5. Governing Law. This Amendment shall be governed by, and
construed and enforced in accordance with, the laws of the State of Delaware
applicable to contracts executed in and to be performed entirely within that
State, without regard to the conflicts of law provisions thereof.
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IN WITNESS WHEREOF, DT, Merger Sub and Powertel have caused this
Amendment to be executed by their respective officers thereunto duly authorized,
all as of the date first written above.
POWERTEL, INC.
By: /s/ Xxxxx X. Xxxxx
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Name: Xxxxx X. Xxxxx
Title: President/CEO
DEUTSCHE TELEKOM AG
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Member of the Board of
Management, International
By: /s/ Dr. Xxxx-Xxxxxxx Xxxx
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Name: Dr. Xxxx-Xxxxxxx Xxxx
Title: Member of the Board of
Management, Finance
BEGA II, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
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Name: Xxxxxxx X. Xxxxxxx
Title: Director
By: /s/ Dr. Xxxx-Xxxxxxx Xxxx
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Name: Dr. Xxxx-Xxxxxxx Xxxx
Title: Director
