SONERA 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.
"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
2
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 later of January 1, 2001
and 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
3
SECTION 3.2 shall cease to be of any force or effect immediately upon
termination of the VoiceStream Reorganization Agreement.
3.3 From the later of January 1, 2001 and the date of the
Powertel Stockholders Meeting, until the earlier of the Effective Time or the
termination of the VoiceStream Reorganization Agreement, each Stockholder may
Transfer only up to 25% of such Stockholder's Total Number of Shares;
provided however, that if during such period any VoiceStream Principal
Stockholder shall Transfer (other than Exempt Transfers) more than 25% of
such VoiceStream Principal Stockholder's Shares (individually or in the
aggregate with other Transfers made during such period), except for TDS
Exempt Sales, then each Stockholder may Transfer a percentage of such
Stockholder's Total Number of Shares (even if such percentage is more than
25%), as permitted by its existing registration rights agreement with
Powertel or otherwise, equal to the largest percentage of such VoiceStream
Principal Stockholder's Shares Transferred, registered or proposed to be
registered by such VoiceStream Principal Stockholder during such period.
"TDS EXEMPT SALES" shall mean sales by Telephone and Data Systems, Inc.
("TDS") made to manage certain investment company matters as permitted
pursuant to that certain Side Letter Agreement dated as of the date of this
Agreement between TDS and Powertel. For purposes hereof, such percentage of
a VoiceStream Principal Stockholder's Shares shall be calculated by dividing
the number of such VoiceStream Principal Stockholder's Shares to be
Transferred or Registered by the total number of such VoiceStream Principal
Stockholder's Shares. "EXEMPT TRANSFERS" shall mean Transfers to any
Affiliate of the VoiceStream Principal Stockholder who agrees in writing to
be bound by the terms of the VoiceStream Stockholder Agreements or Transfers
which occur by operation of law if the transferee remains, or agrees in
writing to remain, bound by the terms of the VoiceStream Stockholder
Agreements.
3.4 From the Effective Time through and including the
six-month anniversary of the Effective Time, each Stockholder agrees not to
Transfer any VoiceStream Common Stock received in the Merger, except in
accordance with Rules 144 and 145 promulgated under the Securities Act
("RULES 144 AND 145"); provided however, that if during such period any
VoiceStream Principal Stockholder shall propose to Transfer more than the
number of such VoiceStream Principal Stockholder's Shares that such
VoiceStream Principal Stockholder is permitted to Transfer under Rule 144,
including the volume restrictions contained therein (individually or in the
aggregate with other Transfers made during such period), except for TDS
Exempt Sales, then the Stockholders may Transfer a percentage of their Total
Number of Shares, equal to the largest percentage of any VoiceStream
Principal Stockholder's Shares so Transferred by any VoiceStream Principal
Stockholder during such period pursuant to (a) piggyback registration rights
with respect to the VoiceStream Principal Stockholder's registration
statement filed with respect to any such Transfer of a VoiceStream Principal
Stockholder's Shares, or (b) the registration rights agreement attached
hereto as Annex A.
3.5 From the day following the six month anniversary of the
Effective Time, each Stockholder may Transfer its shares in accordance with
applicable securities laws, including pursuant to the registration rights
agreement attached hereto as Annex A, provided however, such registration
rights shall not be available under this SECTION 3.5 if a Stockholder, as of
the time of the proposed Transfer, may then Transfer all of its shares of
VoiceStream Common Stock pursuant to Rule 144 or 145 during a single three
month period.
4
3.6 For purposes of SECTION 3.3, a Stockholder's "Total
Number of Shares" is equal to the sum of (i) the number of shares of Powertel
Stock owned of record or Beneficially Owned by the Stockholder as of the
later of January 1, 2001 and the date of the Powertel Stockholders Meeting,
including any shares of Powertel Common Stock issuable upon conversion of any
shares of Powertel Preferred Stock owned by the Stockholder and (ii) the
number of shares of Powertel Common Stock owned of record or Beneficially
Owned by the Stockholder as a result of the exercise or conversion, as
applicable, of any options, warrants or convertible securities (other than
Powertel Preferred Stock) to acquire shares of Powertel Common Stock, during
the period from the later of January 1, 2001 and the date of the Powertel
Stockholders Meeting, until the earlier of the Effective Time and the
termination of the VoiceStream Reorganization Agreement. For purposes of
SECTION 3.4, a Stockholder's Total Number of Shares is equal to the sum of
(i) the number of VoiceStream Common Stock which the Stockholder is or may be
entitled to receive as the merger consideration pursuant to the VoiceStream
Reorganization Agreement in respect of the Initial Number of Shares and (ii)
the number of shares of VoiceStream Common Stock owned of record or
Beneficially Owned by the Stockholder as a result of the exercise or
conversion, as applicable, of any options, warrants or convertible securities
to acquire VoiceStream Common Stock (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 if the
VoiceStream Reorganization Agreement has been consummated at the Effective
Time.
3.7 The foregoing limitations set forth in SECTION 3.3 shall
not apply to any Transfers pursuant to a tender offer, self-tender offer,
exchange offer or other transaction offered generally to holders of
VoiceStream Common Stock and approved or not opposed by VoiceStream's Board
of Directors, and securities subject to a Transfer made pursuant to this
SECTION 3.7 shall be deemed continued to be owned by the Stockholder for
purposes of the calculations made under SECTION 3.3.
3.8 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 Powertel Stock except in accordance with
the limitations of SECTION 3.3.
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
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. AMENDMENT OF REGISTRATION RIGHTS. The registration
rights held by the Stockholders pursuant to the Stock Purchase Agreement by
and between Powertel and the Stockholders dated March 4, 1996, and the
rights/obligations to purchase Shares pursuant to the Stock Purchase
Agreement by and between the Stockholders dated May 30, 2000, and Powertel
shall, in consideration of the undertakings by VoiceStream under this
Agreement and the VoiceStream Reorganization 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 Powertel Stockholders Meeting, and (y) the
termination of the VoiceStream Reorganization Agreement, such Stockholder
shall not exercise any registration rights other than as permitted in Section
3 above and (b) from the date hereof until the earlier of the termination of
the VoiceStream Reorganization 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. None of the agreements so listed shall be amended or
modified in a manner inconsistent with the terms of this Agreement without
VoiceStream's prior written approval.
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, 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
6
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. AMENDMENT OF EXISTING VOTING AGREEMENTS. Certain
stockholders of VoiceStream (the "VOICESTREAM STOCKHOLDERS") are parties to a
Voting Agreement dated February 25, 2000 (as amended May 4, 2000), and a
First Amended and Restated Voting Agreement dated July 23, 2000 which will
take effect in accordance with its terms (collectively the "EXISTING VOTING
AGREEMENTS") pursuant to which they have agreed to vote all shares of
VoiceStream Common Stock and VoiceStream preferred stock beneficially owned
by each of them at the time of such vote in favor of directors in accordance
with the procedures and provisions set forth in such agreements. On or
before the Effective Time, VoiceStream agrees to execute and deliver, and to
use its reasonable best efforts to cause the VoiceStream Stockholders to
execute and deliver, an amended voting agreement (the "AMENDED VOTING
AGREEMENT") on terms mutually satisfactory to VoiceStream, Powertel, the
Stockholders, and the other parties who are presently parties to the Existing
Voting Agreements, providing for: (i) the nomination of one representative of
the Powertel stockholders to the VoiceStream Board of Directors who shall be
initially designated by the Powertel Board of Directors and who shall also be
reasonably satisfactory to VoiceStream; (ii) the creation of a vacancy on
the VoiceStream Board of Directors (and the approval of any Bylaw amendments
or other actions required to do so); (iii) the appointment of such nominee
(and any successor nominee) to a newly created vacancy on the VoiceStream
Board of Directors; and (iv) an agreement to vote all shares of VoiceStream
Common Stock and other voting securities of VoiceStream (and all securities
received in exchange, replacement or substitution therefor, or as a dividend
or result of a stock split with respect thereto) for such nominee (and any
successor nominee) at the first two annual meetings after the Effective Time.
If VoiceStream and the VoiceStream Principal Stockholders are unable to
cause the execution of an Amended Voting Agreement by the other parties to
the Existing Voting Agreement, the Stockholders, VoiceStream and the
VoiceStream Principal Stockholders shall execute a new voting agreement with
such other VoiceStream stockholders who agree to enter into such separate
voting agreement on terms and conditions substantially similar to the
Existing Voting Agreements containing substantially the same additional
provisions as set forth in the preceding sentence. Prior to the Effective
Time, the Powertel Board of Directors may make such provisions as it deems
appropriate for successor nominees each of which shall be reasonably
satisfactory to VoiceStream. After the Effective Time, any nominee or
successor nominee shall be selected by mutual agreement of ITC Holding
Company, Inc., a Delaware corporation, ("ITCORP") and SCANA Communications
Holdings, Inc., a Delaware corporation ("SCORP") or, if no such agreement can
be reached, by whichever of ITCORP and SCORP beneficially owns the larger
number of Shares of VoiceStream Common Stock (including VoiceStream preferred
stock on an as-if-converted basis).
7
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 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 SECTIONS 3.2 through 3.5 of this Agreement shall terminate when the
applicable time periods set forth therein lapse and the remaining provisions
of SECTION 3 of this
8
Agreement shall terminate when each of SECTIONS 3.2 through 3.5 of this
Agreement have 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.
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):
9
(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: 000-000-0000
10.10 WAIVER OF IMMUNITY. Stockholder and VoiceStream each
agree 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). Stockholder and
VoiceStream each agree 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 Stockholder or VoiceStream with
respect to this Agreement.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK)
10
IN WITNESS WHEREOF, the parties hereto have executed this
Powertel Stockholders Agreement as of this 26th day of August, 2000.
VOICESTREAM WIRELESS CORPORATION
By:_______________________________
Name:
Title:
STOCKHOLDERS:
SONERA CORPORATION SONERA HOLDING, B.V.
By: ______________________________ By: ______________________________
Name: Name:
Title: Title:
11
SCHEDULE I
Stockholder Name and Number and Description of
Address Number of Existing Shares Existing Rights
-------------------- ------------------------- -------------------------
Sonera Corporation 100,000 Powertel Series A 4,626,744 shares of
X.X. Xxx 000 Preferred Stock purchased Powertel Common Stock
FIN-00051-TELE from Ericsson, Inc. in currently issuable upon
Teollisuuskatu 15, 1999 (Ericsson's purchase conversion of Powertel
Helsinki, Finland was under Stock Purchase Series A Preferred Stock
Attn: Kaj-Xxxx Xxxxxxxx, Agreement dated March 4,
Executive Vice President 1996)
Facsimile: 011 358 2040
3770
Sonera Holding, B.V. Right/Obligation to
X.X. Xxx 000 purchase 1,740,947 shares
FIN-00051-TELE of Powertel Common Stock
Teollisuuskatu 15, pursuant and subject to
Helsinki, Finland the Stock Purchase
Attn: Kaj-Xxxx Xxxxxxxx, Agreement dated May 30,
Executive Vice President 2000, and 1,044,568
Facsimile: 011 358 2040 shares of Powertel Common
3770 Stock pursuant and
subject to the Put
Agreement dated May 30,
2000
ANNEX A
REGISTRATION RIGHTS
(a) The Stockholder shall have the right at any time after the Effective
Time to make THREE requests of VoiceStream in writing for registration under
the Securities Act of shares of VoiceStream Common Stock into which the
shares of Powertel Preferred Stock held by the Stockholder were converted,
the shares of VoiceStream Powertel Common Stock received pursuant to the
VoiceStream Reorganization Agreement, the Stock Purchase Agreement between
Sonera Holding B.V. and Powertel, dated May 30, 2000, or the Put Agreement,
between Sonera Holding B.V. and Powertel, dated May 30, 2000 (the
"SECURITIES"): with respect to the first such request to register under the
Securities Act at least $20 million in market value of Securities
Beneficially Owned by the Stockholder (the shares subject to any such request
hereunder being referred to as the "SUBJECT STOCK"), and with each subsequent
such request being at least 6 months following the completion of the prior
offering pursuant to a registration statement with respect to the Subject
Stock which was effective until the earlier of the completion of such
offering or three months. VoiceStream shall use all reasonable efforts to
cause the Subject Stock to be registered under the Securities Act as soon as
reasonably practicable after receipt of a request so as to permit promptly
the sale thereof, and in connection therewith, VoiceStream shall prepare and
file, on such appropriate form as VoiceStream in its discretion shall
determine, a registration statement under the Securities Act to effect such
registration. VoiceStream shall use all reasonable efforts to list all
Subject Stock covered by such registration statement on any national
securities exchange on which the VoiceStream Common Stock is then listed or
to list such Subject Stock on the National Association of Securities Dealers,
Inc. Automated Quotation System or National Market System. The Stockholder
hereby undertakes to provide all such information and materials and take all
such action as may be required in order to permit VoiceStream to comply with
all applicable requirements of the United States Securities and Exchange
Commission ("COMMISSION") and to obtain any desired acceleration of the
effective date of such registration statement. Any registration statement
filed at the Stockholder's request hereunder will not count as a requested
registration unless effectiveness is maintained until the earlier of
completion of the offering or three months. Notwithstanding the foregoing,
VoiceStream (i) shall not be obligated to cause any special audit to be
undertaken in connection with any such registration (provided that this
provision shall not relieve VoiceStream of its obligation to obtain any
required consents with respect to financial statements in prior periods) and
(ii) shall be entitled to postpone for a reasonable period (not to exceed 90
days) of time the filing of any registration statement otherwise required to
be prepared and filed by VoiceStream if VoiceStream is, at such time, either
(A) conducting, or proposing to file with the Commission within 90 days a
registration statement with respect to, an underwritten public offering for
the account of VoiceStream of equity securities (or securities convertible
into equity securities) or is subject to a contractual obligation not to
engage in a public offering and is advised in writing by its managing
underwriter or underwriters (with a copy to the Stockholder) that such
offering would in its or their opinion be adversely affected by the
registration so requested or (B) subject to an existing contractual
obligation to its underwriters not to engage in a public offering.
Notwithstanding any other provision of this Annex, VoiceStream may postpone
action under this
A-1
Annex for as long as it reasonably deems necessary (but no longer than 90
days) if VoiceStream determines, in its reasonable discretion, that effecting
the registration at such time might (i) adversely affect a pending or
contemplated financing, acquisition, disposition of assets or stock, merger
or other significant transaction, or (ii) require VoiceStream to make public
disclosure of information the public disclosure of which at such time
VoiceStream in good faith believes could have a significant adverse effect
upon VoiceStream.
No securities may be registered on a registration statement requested
by the Stockholder pursuant to the first paragraph of paragraph (a) of this
Annex without the Stockholder's express written consent, unless the amount of
such securities is subject to reduction prior to any reduction in the number
of securities originally requested by the Stockholder in the event the lead
underwriter of the related offering believes that the success of such
offering would be materially and adversely affected by inclusion of all the
securities requested to be included therein.
At any time after the Effective Time, if VoiceStream proposes to file
a registration statement under the Securities Act with respect to an offering
of its equity securities (i) for its own account (other than a registration
statement on Form S-4 or S-8 (or any substitute form that may be adopted by
the Commission)) or (ii) for the account of any homers of its schedules
(including pursuant to a demand registration), then VoiceStream shall give
written notice of such proposed filing to the Stockholder as soon as
practicable (but in any event not less than 5 Business Days before the
anticipated filing date), and such notice shall offer the Stockholder the
opportunity to register such, number of shares of Securities as the
Stockholder requests. If the Stockholder wishes to register securities of
the same class or series as VoiceStream or such holder, such registration
shall be on the same terms and conditions as the registration of
VoiceStream's or such holders' securities (a "PIGGYBACK REGISTRATION").
Notwithstanding anything contained herein, if the lead underwriter of an
offering involving a Piggyback Registration delivers a written opinion to
VoiceStream that the success of such offering would be materially and
adversely affected by inclusion of all the securities requested to be
included, then the number of securities to be registered by the Stockholder
shall be reduced prior, to any reduction in the number of securities
originally requested by them; PROVIDED, HOWEVER, that VoiceStream must
provide prompt written notice of such written opinion to the Stockholder.
The Stockholder shall have the right at any time to convert its request for a
Piggyback Registration into a requested registration pursuant to the first
paragraph of paragraph (a) of this Annex.
(b) In connection with any offering of shares of Subject Stock
registered pursuant to this Annex, VoiceStream (i) shall furnish to the
Stockholder such number of copies of any prospectus (including any
preliminary prospectus) as it may reasonably request in order to effect the
offering and sale of the Subject Stock to be offered and sold, but only while
VoiceStream shall be required under the provisions hereof to cause the
registration statement to remain current and (ii) take such action as shall
be necessary to qualify the shares covered by such registration statement
under such "blue sky" or other state securities laws for offer and sale as
the Stockholder shall reasonably request; PROVIDED, HOWEVER, that VoiceStream
shall not be obligated to qualify as a foreign corporation to do business
under the laws of any jurisdiction in which it shall not then be qualified or
to file any general consent to service of process in any jurisdiction
A-2
in which such a consent has not been previously filed. If applicable,
VoiceStream shall enter into an underwriting agreement with a managing
underwriter or underwriters selected by the Stockholder (reasonably
satisfactory to VoiceStream) containing representations, warranties,
indemnities and agreements then customarily included by an issuer in
underwriting agreements with respect to secondary distributions; PROVIDED,
HOWEVER, that such underwriter or underwriters shall agree to use their best
efforts to ensure that the offering results in a distribution of the Subject
Stock sold in accordance with the terms of this Agreement. In connection
with any offering of Subject Stock registered pursuant to this Annex,
VoiceStream shall (x) furnish to the underwriter, at VoiceStream's expense,
unlegended certificates representing ownership of the Subject Stock being
sold in such denominations as reasonably requested and (y) instruct any
transfer agent and registrar of the Subject Stock to release any stop
transfer orders with respect to such Subject Stock. Upon any registration
becoming effective pursuant to this Annex, VoiceStream shall use all
reasonable efforts to keep such registration statement current for such
period as shall be required for the disposition of all of said Subject Stock;
PROVIDED, HOWEVER, that such period need not exceed three months.
(c) The Stockholder shall pay all underwriting discounts and
commissions related to shares of Subject Stock being sold by the Stockholder
and the fees and disbursements of counsel and other advisors to the
Stockholder. All other fees and expenses in connection with the first
requested registration pursuant to the first paragraph of paragraph (a) of
this Annex, including, without limitation, all registration and filing fees,
all fees and expenses of complying with securities or "blue sky" laws, fees
and disbursements of VoiceStream's counsel and accountants (including the
expenses of "cold comfort" letters required by or incident to such
performance and compliance) and any fees and disbursements of underwriters
customarily paid by issuers in secondary offerings, shall be paid by
VoiceStream, and all such other fees and expenses in connection with the
second and third requested registration pursuant to this Annex shall be borne
equally by the Stockholder and VoiceStream.
(d) In the case of any offering registered pursuant to this Annex,
VoiceStream agrees to indemnify and hold the Stockholder, each underwriter of
Securities under such registration and each person who controls any of the
foregoing within the meaning of Section 15 of the Securities Act and the
directors and officers of the Stockholder, harmless against any and all
losses, claims, damages, liabilities or action to which they or any of them
may become subject under the Securities Act or any other statute or common
law or otherwise, and to reimburse them for any legal or other expenses
reasonably incurred by them in connection with investigating any claims and
defending any actions, insofar as any such losses, claims, damages,
liabilities or actions shah arise out, of or shall be based upon (i) any
untrue statement or alleged untrue statement of a material fact contained in
the registration statement relating to the sale of such Subject Stock, or the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading or (ii) any untrue
statement or alleged untrue statement of a material fact contained in any
preliminary prospectus (as amended or supplemented if VoiceStream shall have
filed with the Commission any amendment thereof or
A-3
supplement thereto), if used prior to the effective date of such registration
statement, or contained in the prospectus (as amended or supplemented if
VoiceStream shall have filed with the Commission any amendment thereof or
supplement thereto), or the omission or alleged omission to state therein a
material fact necessary in order to make the statements therein, in light of
the circumstances under which they were made, not misleading; PROVIDED,
HOWEVER, that the indemnification agreement contained in this paragraph (d)
shall not apply to such losses, claims, damages, liabilities or actions which
shall arise from the sale of Subject Stock by the Stockholder if such losses,
claims, damages, liabilities or actions shall arise out of or shall be based
upon any such untrue statement or alleged untrue statement, or any such
omission or alleged omission, (x) made in reliance upon and in conformity
with information furnished in writing to VoiceStream by the Stockholder or
any such underwriter specifically for use in connection with the preparation
of the registration statement or any preliminary prospectus or prospectus
contained in the registration statement or any such amendment thereof or
supplement thereto or (y) made in any preliminary prospectus, and the
prospectus contained in the registration statement in the form filed by
VoiceStream with the Commission pursuant to Rule 424(b) under the Securities
Act shall have corrected such statement or omission and a copy of such
prospectus shall not have been sent or given to such person at or prior to
the confirmation of such sale to him.
(e) In the case of each offering registered pursuant to this Annex,
the Stockholder and each underwriter participating therein shall agree, in
the same manner and to the same extent as set forth in paragraph (d) of this
Annex, severally to indemnify and hold harmless VoiceStream and each person,
if any, who controls VoiceStream within the meaning of Section 15 of the
Securities Act, and the directors and officers of VoiceStream, and in the
case of each such underwriter, the Stockholder, each person, if any, who
controls the Stockholder within the meaning of the Securities Act and the
directors, officers and partners of the Stockholder, with respect to any
statement in or omission from such registration statement or any preliminary
prospectus (as amended or as supplemented, if amended or supplemented as
aforesaid) or prospectus contained in such registration statement (as amended
or as supplemented, if amended or supplemented as aforesaid), if such
statement or omission shall have been made in reliance upon and in conformity
with information furnished in writing to VoiceStream by the Stockholder or
such underwriter specifically for use in connection with the preparation of
such registration statement or any preliminary prospectus or prospectus
contained in such registration statement or any such amendment thereof or
supplement thereto.
(f) Each party indemnified under paragraph (d) or (e) of this Annex
shall, promptly after receipt of notice of the commencement of any action
against such indemnified party in respect of which indemnity may be sought
hereunder, notify the indemnifying party in writing of the commencement
thereof. The omission of any indemnified party to so notify an indemnifying
party of any such action shall not relieve the indemnifying party from any
liability in respect of such action which it may have to such indemnified
party on account of the indemnity agreement contained in paragraph (d) or (e)
of this Annex, unless the indemnifying party was prejudiced by such omission,
and in no event shall relieve the indemnifying party from any other liability
which it may have to such indemnified party. In case any such action shall
be brought against any indemnified party and it shall notify an indemnifying
party of the commencement thereof, the indemnifying party shall be entitled
to participate therein and, to the extent that it may desire, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, and after notice from the indemnifying party to such indemnified
party of its election so to assume
A-4
the defense thereof, the indemnifying party shall not be liable to such
indemnified party under paragraph (d) or (e) of this Annex for any legal or
other expenses subsequently incurred by such indemnified party in connection
with the defense thereof, other than reasonable costs of investigation;
PROVIDED, HOWEVER, that if there exists or is reasonably likely to exist a
conflict of interest that would make it inappropriate in the judgment of the
indemnified party, in its sole and absolute discretion, for the same counsel
to represent both the indemnified party and the indemnifying party, then the
indemnified party shall be entitled to retain its own counsel, in each
jurisdiction for which the indemnified party determines counsel is required,
at the expense of the indemnifying party. No such third party claim may be
settled by the indemnifying party or the indemnified party without the prior
written consent of the other, which consent shall not be unreasonably
withheld.
(g) If the indemnification provided for under paragraph (d) or (e)
shall for any reason be held by a court to be unavailable to an indemnified
party under paragraph (d) or (e) hereof in respect of any loss, claim, damage
or liability, or any action in respect thereof, then, in lieu of the amount
paid or payable under paragraph (d) or (e) hereof, the indemnified party and
the indemnifying party under paragraph (d) or (e) hereof shall contribute to
the aggregate losses, claims, damages and liabilities (including legal or
other expenses reasonably incurred in connection with investigating the
same), (i) in such proportion as is appropriate to reflect the relative fault
of VoiceStream and the prospective seller of Securities covered by the
registration statement which resulted in such loss, claim, damage or
liability, or action in respect thereof, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or action
in respect thereof, as well as any other relevant equitable considerations or
(ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as shall be appropriate to reflect the
relative benefits received by VoiceStream and such prospective seller from
the offering of the securities covered by such registration statement. No
Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation. In addition,
no Person shall be obligated to contribute hereunder any amounts in payment
for any settlement of any action or claim effected without such Person's
consent, which consent shall not be unreasonably withheld.
(h) Notwithstanding anything to the contrary contained in this
Agreement, the maximum amount of indemnifiable losses which may be recovered
from an indemnifying party arising out of or resulting from the causes
enumerated in paragraph (d) or (e) shall be an amount equal to the gross
proceeds from the applicable offering received by the Stockholder.
(i) Capitalized terms not defined in this Annex shall have the
meanings set forth in the Agreement and the VoiceStream Reorganization
Agreement, as defined in the Agreement.
A-5
