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EXHIBIT 9
SIDE AGREEMENT
This Side Agreement is entered into as of August 26, 2000
between Telephone and Data Systems, Inc. ("TDS") and Powertel, Inc.
("Powertel").
WHEREAS, in connection with an Agreement and Plan of
Reorganization ("Powertel Merger Agreement") dated the date hereof between
Powertel and VoiceStream Wireless Corporation ("Parent"), TDS and Powertel have
entered into a Stockholder Agreement dated the date hereof ("Powertel
Stockholder Agreement"), with the agreements reflected herein taking precedence
over those in the Stockholder Agreement to the extent inconsistent;
WHEREAS, in connection with an Agreement and Plan of Merger
("DT Merger Agreement") dated as of July 23, 2000 between Deutsche Telekom AG
("DT") and Parent, DT and TDS have entered into a Stockholder Agreement dated as
of July 23, 2000 ("DT Stockholder Agreement") and a Side Letter Agreement dated
July 23, 2000 ("DT Side Letter"), with the agreements reflected in the DT Side
Letter taking precedence over those in the DT Stockholder Agreement to the
extent inconsistent;
WHEREAS, TDS and Powertel desire to enter into this Side
Agreement relating to certain other agreements between TDS and Powertel;
WHEREAS, capitalized terms used herein have the meanings set
forth in the Powertel Stockholder Agreement unless otherwise defined herein;
NOW THEREFORE, in consideration of the premises and the mutual
covenants herein, the parties agree as follows:
Notwithstanding anything to the contrary in the Powertel
Stockholder Agreement or the Powertel Merger Agreement:
1. If the DT Merger Agreement has not been terminated, TDS shall
be permitted to Transfer Shares or Rights to the extent permitted by the DT Side
Letter and the DT Stockholder Agreement without regard to any provisions of the
Powertel Stockholder Agreement.
2. If the DT Merger Agreement is terminated, the following
provisions shall be applicable:
a. If the Board of TDS determines that it may be an "investment
company" under Section 3(a)(1)(C) of the Investment Act of
1940, as amended (the "1940 Act") and that it does not have
available to it any exemption (other than the exemption for
transient investment companies under Rule 3a-2) under the 1940
Act, then, unless it reasonably determines (based on the
advice of counsel) and certifies to Powertel that it cannot in
good faith apply for an exemption under Section 3(b)(2) of the
1940
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Act, it will, as soon as practicable, apply for and use its
commercially reasonable efforts to obtain an exemption from
the SEC under Section 3(b)(2).
b. If TDS is not successful in obtaining an exemptive order under
Section 3(b)(2) within six months of filing an application
therefor - or has determined that it cannot in good faith
apply for exemption under Section 3(b)(2) - then
notwithstanding the restrictions on Transfer contained in the
Powertel Stockholder Agreement, TDS will be permitted to
Transfer or otherwise monetize or dispose of (a "Disposition")
from time to time an aggregate number of shares in Parent in
addition to the number of shares it is otherwise permitted to
Dispose of under the terms of the Powertel Stockholder
Agreement ("Excess Shares") which is determined by the Board
of TDS to be appropriate to come into and maintain compliance
with the 1940 Act while providing a reasonable margin of
safety, and to avoid characterization as an investment
company, provided each of the following conditions is met:
(i) No Disposition of Excess Shares will take place
before TDS provides written notice to Powertel
specifying the respective dates on which TDS believes
the exclusion period available to TDS under Rule 3a-2
commenced and is expected to terminate in accordance
with the provisions of such Rule (and TDS will use
its best efforts to provide such written notice to
Powertel within 15 days after TDS makes an election
to rely on the transient investment company exclusion
provided in Rule 3a-2).
(ii) No Disposition of Excess Shares will take place
before the date six months prior to the date on which
the exemption available to TDS under Rule 3a-2 is
expected to terminate (including any extensions
thereof from and after the date granted).
(iii) No Disposition of Excess Shares will take place
before the VoiceStream Stockholder Approval is
obtained unless the acquiror of such shares takes
them subject to TDS's voting obligations contained in
the Powertel Stockholder Agreement (or the
Disposition is otherwise structured so TDS retains
sole voting rights with respect to the Powertel
Merger Agreement and the transactions contemplated
therein), provided that TDS may Dispose of Excess
Shares without regard to the foregoing restriction if
the Parent shareholder approval has not occurred as
of the date four and one-half months prior to the
date on which the exemption available to TDS under
Rule 3a-2 is expected to terminate (including any
extensions thereof from and after the date granted);
provided, however, in the event TDS obtains an
extension of the one-year exclusion period of at
least one and one-half months, then the four and
one-half month period referred to in this paragraph c
shall be six months.
(iv) Prior to any Disposition of Excess Shares, TDS
receives an opinion of outside counsel (which may
rely upon certificates of officers of TDS as to
factual matters), which may express a reasoned
opinion, to the effect that but
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for the exemption available under Rule 3a-2 TDS would
be an investment company (and no other exemption is
available).
(v) Prior to any Disposition of Excess Shares, the
determination of the Board of TDS required by this
paragraph 2 shall be set forth in an appropriate
resolution or resolutions of the Board.
(vi) TDS will dispose of such minimum number of shares as
determined by the Board of TDS pursuant to this
paragraph 2.
(vii) In order to avoid uncertainty, the parties reaffirm
that the provisions of Sections 3(a), 3(b) and 3(c)
of the Powertel Stockholder Agreement shall not be
applicable in the event TDS is permitted to Dispose
of Excess Shares pursuant to the foregoing
provisions.
c. In the event that prior to the Effective Date TDS is permitted
to dispose of any shares under the foregoing provisions or
under the Powertel Stockholder Agreement, Powertel shall use
commercially reasonable efforts to provide such information as
may reasonably be necessary to permit Parent to fulfill its
obligations under the Registration Rights Agreement dated May
4, 2000 between TDS and Parent.
d. Prior to the execution of this Side Agreement, TDS shall
receive copies of the final versions of Stockholder Agreements
entered into between Powertel and any stockholder of Parent in
connection with the Powertel Merger Agreement.
e. In the event that TDS Transfers its shares in Parent Common
Stock to an Affiliate of TDS (as permitted by Section 3(a) of
the Powertel Stockholder Agreement), such Affiliate will agree
in writing to be bound by the terms of this Side Agreement as
well as the terms of the Powertel Stockholder Agreement and,
in such event, TDS and Powertel agree that the terms of this
Side Agreement will apply to TDS and such Affiliate.
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IN WITNESS WHEREOF, the parties hereto have executed this Side
Agreement as of this 26th day of August, 2000.
POWERTEL, INC.
By: /s/ Allen E. Smith
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Name: Allen E. Smith
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Title: President & Chief Executive Officer
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TELEPHONE AND DATA SYSTEMS, INC.
By: /s/ Sandra L. Helton
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Name: Sandra L. Helton
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Title: Executive Vice President & CFO
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Signature Page to Side Agreement
relating to Powertel-VoiceStream Transaction
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