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EXHIBIT 3
AMERICAN WATER WORKS STOCKHOLDER AGREEMENT
POWERTEL STOCKHOLDER AGREEMENT
This Stockholder Agreement (this "AGREEMENT") dated as of August 26,
2000 between the stockholders listed on the signature page hereto (collectively,
the "STOCKHOLDER") and Deutsche Telekom AG, an Aktiengesellschaft organized and
existing under the laws of the Federal Republic of Germany ("DT").
WHEREAS, simultaneously with the execution of this Agreement,
Powertel, Inc., a Delaware corporation ("POWERTEL"), and DT are entering into an
Agreement and Plan of Merger dated as of the date hereof providing for the
merger of a subsidiary of DT with and into Powertel (as amended or modified from
time to time, the "DT MERGER AGREEMENT");
WHEREAS, DT has agreed to enter into the DT Merger Agreement only if
the Stockholder enters into this Agreement;
WHEREAS, simultaneously with the execution of this Agreement,
Powertel and VoiceStream Wireless Corporation, a Delaware corporation
("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 if, but only if,
the DT Merger Agreement is terminated;
NOW THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained herein
and in the DT Merger Agreement, the parties hereto, intending to be legally
bound hereby, agree as follows:
1. CERTAIN DEFINITIONS. This Agreement is one of the Powertel
Stockholder Agreements referred to in the recitals to the DT Merger Agreement.
Capitalized terms used but not defined in this Agreement are used in this
Agreement with the meanings given to such terms in the DT Merger 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.
"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 Depositary Shares,
each representing the right to receive one DT Ordinary Share, and any security
into which DT Ordinary Shares or DT Depositary Shares are exchangeable as
contemplated by Section 1.05(f) of the DT Merger Agreement.
"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 Beneficial Ownership thereof, the offer to
make such a sale, transfer, constructive sale or other disposition, and each
option, agreement, arrangement or understanding, whether or
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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.
"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.
2. REPRESENTATIONS; WARRANTIES AND COVENANTS OF STOCKHOLDER.
Stockholder hereby represents and warrants, severally and not jointly, to DT,
solely with respect to itself, as of the date hereof, as follows:
2.1 TITLE. As of the date hereof, Stockholder is the sole record
and Beneficial Owner of the number of shares of Powertel Common Stock or
Powertel Preferred Stock, as the case may be, set forth opposite Stockholder's
name on Schedule A attached hereto (Stockholder's "EXISTING SHARES" and,
together with the record ownership or Beneficial Ownership of any shares of
Powertel Common Stock, Powertel Preferred 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, Stockholder's "SHARES"), and/or the number of warrants,
options or other rights to acquire or receive such Powertel Common Stock or
Powertel Preferred Stock, as the case may be, set forth opposite Stockholder's
name on Schedule A attached hereto (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 Common Stock,
Powertel Preferred Stock or other voting capital stock of Powertel acquired
after the date hereof, Stockholder's "RIGHTS"). Stockholder is the lawful owner
of the Existing Shares and Existing Rights, free and clear of all liens, claims,
charges, security interests or other encumbrances, except as disclosed on
Schedule A. As of the date hereof, the Existing Shares constitute all of the
capital stock of Powertel Beneficially Owned or owned of record by Stockholder
(excluding the Existing Rights) and Stockholder does not own of record or
beneficially, or have the right to acquire (whether currently, upon lapse of
time, following the satisfaction of any conditions, upon the occurrence of any
event or any combination of the foregoing) any shares of Powertel Common Stock
or Powertel Preferred Stock or any other securities convertible into or
exchangeable or exercisable for shares of Powertel Common Stock or Powertel
Preferred Stock, except pursuant to the Existing Rights.
2.2 RIGHT TO VOTE. Stockholder has, with respect to all of
Stockholder's Existing Shares, and will have at the Powertel Stockholders'
Meeting, with respect to all of Stockholder's Shares acquired 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 his or its obligations as provided
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by Section 4 and Section 5 hereof. Stockholder hereby revokes any and all
proxies with respect to Stockholder's Existing Shares or Existing Rights to the
extent they are inconsistent with the Stockholders' obligations under this
Agreement.
2.3 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).
2.4 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, law or regulation to which Stockholder is a
party or by which Stockholder (or any of its assets) is bound.
2.5 DT's RELIANCE. Stockholder understands and acknowledges that DT
is entering into the DT Merger Agreement in reliance upon Stockholder's
execution, delivery and performance of this Agreement.
3. RESTRICTION ON TRANSFER; OTHER RESTRICTIONS.
3.1 Stockholder agrees not to Transfer or agree to Transfer any
Shares or Rights owned of record or Beneficially Owned by Stockholder, except as
otherwise permitted by this Section 3 or pursuant to 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 DT's prior written consent.
3.2 From the date hereof until the date of the Powertel
Stockholders' Meeting, Stockholder agrees not to Transfer any Shares or Rights
owned of record or Beneficially Owned by Stockholder, provided, however, that
this Section 3.2 shall cease to be of any force or effect immediately upon
termination of the DT Merger Agreement.
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 Stock, DT
Securities or DT Derivative Securities.
3.4 Stockholder hereby irrevocably waives any rights of appraisal
or rights to dissent from the merger contemplated by the DT Merger Agreement
that Stockholder may have.
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3.5 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 Section 3.1 through 3.3 shall be revised to reflect the more
favorable treatment of the stockholders of such company or the absence of
restrictions, as the case may be, including the grant or sufferance to exist of
registration rights.
4. AGREEMENT TO VOTE. 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 beneficially 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 such matters arise (a) in favor of the Merger
and the DT Merger 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 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, Stockholder hereby agrees (a) to complete and send the
proxy card received by Stockholder with the Powertel Proxy Statement, so that
such proxy card is received by Powertel, as prescribed by the Powertel 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 Merger
and the DT Merger Agreement and (ii) if the opportunity to do so is presented to
Stockholder on the proxy card, against any Alternative Transaction and (c) not
to revoke any such proxy.
6. NO SOLICITATION. From and after the date hereof, the
Stockholders shall not, nor shall they permit any of their respective
Subsidiaries to, nor shall they authorize or 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
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in its capacity as an officer, director, employee or advisor to Powertel to take
any action permissible under the DT Merger Agreement.
7. REGISTRATION RIGHTS. Stockholder represents that it has no
registration rights or rights of first refusal, contractual preemptive rights
or similar rights in respect of 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, 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. MISCELLANEOUS.
9.1 ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and,
except for the Stockholders Agreements as defined in the VoiceStream
Reorganization Agreement and the Stockholders Agreements as defined in the
VoiceStream/DT Merger Agreement, supersedes all other prior agreements and
understanding, both written and oral, among the parties hereto with respect to
the Transfer or voting of Shares. This Agreement is not intended to confer upon
any Person other than the parties hereto any rights or remedies hereunder.
9.2 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.
9.3 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.
9.4 EXECUTION IN COUNTERPARTS. 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 of Powertel).
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9.5 SPECIFIC PERFORMANCE. Stockholder agrees with DT as to itself
that if for any reason any Stockholder fails to perform any of 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 9.5 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.
9.6 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 DT Merger Agreement. The provisions of Section 3.2 of this Agreement
shall terminate when the applicable time period set forth therein lapses, the
remaining provisions of Section 3 of this Agreement shall terminate when Section
3.2 of this Agreement has terminated and the provisions of Section 4 and Section
5 of this Agreement shall terminate upon the earlier to occur of the Effective
Time and the termination of the DT Merger Agreement.
9.7 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 9.7(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.
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Without limiting the foregoing, each party agrees that service of process on
such party as provided in Section 9.9 shall be deemed effective service of
process on such party.
9.8 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 Stockholder or any other
individual, any executors, administrators, estates, legal representatives and
heirs of 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.
9.9 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 Stockholder, at Stockholder's address appearing on
Schedule A hereto or at any other address that Stockholder may have provided in
writing to DT.
(b) if to DT:
Deutsche Telekom AG
140 Xxxxxxxxx-Xxxxx-Allee
53113 Bonn
Germany
Attention: Xxxxx Xxxx
Facsimile: x00-000-000-00000
with a copy to:
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
9.10 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
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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
Stockholder Agreement as of the date first written above.
DEUTSCHE TELEKOM AG
By: /s/ Xxxxx Xxxx
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Name: Xxxxx Xxxx
Title: Head of International
Legal Affairs
AMERICAN WATER WORKS COMPANY
By: /s/ W. Xxxxxxx Xxxx
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Name: W. Xxxxxxx Xxxx
Title: General Counsel and
Secretary
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SCHEDULE A
Stockholder Name and Number of Existing Shares Number and Description
-------------------- ------------------------- ----------------------
Address of Existing Rights
------- ------------------
American Water Works 607,612 Shares of
Company Powertel Common Stock
0000 Xxxxxx Xxx Xxxx
XX Xxx 0000
Xxxxxxxx, XX 00000
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