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EXHIBIT 10.4
PUT AGREEMENT
THIS PUT AGREEMENT (the "Agreement") is made and entered into as of May
30, 2000, by and among Eliska Wireless Investors I, L.P., a limited partnership
formed under the laws of the State of Alabama ("Investors"), Powertel, Inc., a
Delaware corporation ("Powertel"), and Sonera Holding B.V., a company organized
under the laws of the Netherlands ("Sonera") (Investors, Powertel and Sonera are
referred to individually herein as a "Party" and collectively as the "Parties").
WITNESSETH:
WHEREAS, Investors owns or has subscribed to purchase 5,000 shares, par
value US$0.01 per share (the "Shares"), of the common stock of Eliska Wireless
Ventures I, Inc., a Delaware corporation (the "Company");
WHEREAS, 4,900 of the Shares (the "Escrowed Shares") will be held, upon
acceptance of the above-referenced subscription by the Company, in escrow as
security under the Promissory Note attached as Exhibit A to the Stock Purchase
Agreement between Investors and the Company of even date herewith (the "Note")
pursuant to the terms and conditions of the Escrow Agreement attached as Exhibit
B to the Stock Purchase Agreement between Investors and the Company of even date
herewith ("Escrow Agreement");
WHEREAS, 100 of the Shares (the "Initial Paid-In Shares") will be held,
upon acceptance of the above-referenced subscription by the Company, free and
clear of all liens;
WHEREAS, in the event that Investors makes payment in full of all
amounts that are due under the Note through July 1, 2003, including, without
limitation, full payment of all principal and accrued interest under the Note
through such date, the Escrowed Shares shall be released from escrow, and
Investors will hold outright all of the Shares, free and clear of all liens;
WHEREAS, Investors desires to have the right to cause Powertel to
purchase certain of the Shares and any securities issued as a dividend or
distribution with respect thereto or in exchange or replacement thereof under
the terms and conditions set forth herein; and
WHEREAS, Powertel is willing to purchase certain of the Shares and any
securities issued as a dividend or distribution with respect thereto or in
exchange or replacement thereof on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto agree as
follows:
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SECTION 1. FIRST PUT OPTION.
A. For the thirty (30) day period beginning on October 1, 2001
and ending on October 30, 2001, Investors shall have the right, but not the
obligation, to sell all, but not less than all, of the Initial Paid-In Shares
and all securities issued as a dividend or distribution with respect thereto or
in exchange or replacement thereof (the "Initial Subject Stock") to Powertel,
and Powertel shall be obligated to purchase the Initial Subject Stock from
Investors for the consideration and upon the terms and conditions set forth in
this Agreement (the "First Put"). Investors may exercise the First Put only by
giving effective written notice thereof (the "First Put Exercise Notice") to
Powertel on or before October 30, 2001. For the purposes hereof, the effective
date of the First Put Exercise Notice shall be known as the "First Put Notice
Date."
B. In payment for the Initial Subject Stock, at the closing that
is held pursuant to Section 1(C) below, Powertel shall deliver to Investors, at
the election of Investors, which election shall be set forth in the First Put
Notice as referenced in Section 1(A) hereof, either (i) $1,500,000, payable by
bank check or wire transfer (the "First Put Cash"), or (ii) thirteen thousand
nine hundred twenty-eight (13,928) fully paid and nonassessable shares of
Powertel's common stock, par value $0.01 per share (the "First Put Shares"), at
the option of Investors designated not later than the second business day
immediately preceding the First Put Closing (as defined in Section 1(D) below).
The Parties acknowledge and agree that the First Put Shares will be "restricted
securities" as such term is defined in Rule 144 promulgated pursuant to the
Securities Act of 1933, as amended, and the certificate representing the First
Put Shares will bear a restrictive legend to such effect. The number of First
Put Shares that is deliverable to Investors upon exercise of the First Put shall
be appropriately adjusted to account for any stock split, stock dividend, stock
combination or similar transaction involving or relating to the Powertel common
stock or Powertel which occurs between the date hereof and the First Put
Closing.
C. Powertel agrees that, in the event that a transaction occurs
whereby all or substantially all of Powertel's stock or assets are sold or
transferred, whether by means of a merger, consolidation, tender offer or
otherwise (collectively, a "Change of Control Transaction"), if the First Put is
exerciseable or has been exercised, Powertel shall require as a condition to
agreeing to such Change of Control Transaction that this Agreement be
specifically assumed in writing by the party acquiring Powertel's stock or
assets (and by the party which is issuing the consideration in connection with
the Change of Control Transaction, if different), and the First Put shall
thereafter be exercisable for such securities and/or such other property as
Investors would have received if it had held the Powertel stock subject to the
First Put as of the date of the closing of the Change of Control Transaction
(and the securities and/or property for which the First Put is thereby
exercisable shall be considered "First Put Shares" under this Agreement). If, in
connection with the Change of Control Transaction, the acquiror provides the
holders of Powertel's common stock with an option to choose among various forms
of consideration, or various combinations of different types of consideration
(each a "Consideration Option"), then the Put shall be exercisable with respect
to the Consideration Option that includes the maximum amount of voting
securities of the party acquiring Powertel's stock or assets in the Change of
Control Transaction. Following the closing of a Change of Control Transaction,
the number and type of securities that are deliverable to Investors upon
exercise of the First Put shall
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be appropriately adjusted to account for any stock split, stock dividend, stock
combination, merger, exchange, recapitalization or similar transaction relating
to the securities for which the First Put is exercisable.
D. The closing of the purchase of the Initial Subject Stock
pursuant to the exercise of the First Put (the "First Put Closing") shall take
place at the law offices of Morris, Manning & Martin, L.L.P., 3343 Peachtree
Road, N.E., Suite 1600, Atlanta, Georgia 30326 at 10:00 a.m., Eastern time, on
the date determined as follows: (i) if the transaction is subject to any prior
regulatory approval, then the First Put Closing shall take place on the tenth
(10th) day following the receipt of such regulatory approval, (ii) if the
transaction is not subject to regulatory approval, the First Put Closing shall
take place on the twentieth (20th) day after the First Put Notice Date, (iii) if
the date of the First Put Closing falls on a weekend or on a federal holiday,
the First Put Closing shall take place on the next regular business day and (iv)
the First Put Closing may take place at such other place and time as Investors
and Powertel agree; provided, however, that if a Covenant Condition (as defined
in Section 6) exists as of the First Put Closing Date, the First Put Closing
shall take place no earlier than the one hundredth (100th) day after the First
Put Notice Date (the "Covenant Requirement") unless Powertel elects to waive the
Covenant Requirement and to cause the First Put Closing to occur in accordance
with the other provisions of this Section 1(D).
E. Investors and Powertel acknowledge and agree that in the event
of the exercise of the First Put by Investors as set forth herein, the Note and
the Escrow Agreement shall immediately terminate in accordance with their terms
as of the First Put Notice Date, and as a result thereof, (i) Investors shall
have no further obligation of payment under the Note, (ii) the Escrow Agent (as
such term is defined in the Escrow Agreement) shall promptly distribute the
Escrowed Shares to the Company or the Company's transfer agent together with the
Stock Power (as such term is defined in the Escrow Agreement) and instructions
that the Escrowed Shares be cancelled and (iii) the Company shall promptly
cancel the Escrowed Shares.
SECTION 2. SECOND PUT OPTION.
A. In the event that Investors makes payment in full of all
amounts that are due under the Note through July 1, 2003, including, without
limitation, full payment of all principal and accrued interest under the Note
through such date, Investors shall, for the thirty (30) day period beginning on
July 2, 2003 and ending on July 31, 2003, have the right, but not the
obligation, to sell all, but not less than all, of the Shares and all securities
issued as a dividend or distribution with respect thereto or in exchange or
replacement thereof (the "Total Subject Stock") to Powertel, and Powertel shall
be obligated to purchase the Total Subject Stock from Investors for the
consideration and upon the terms and conditions set forth in this Agreement (the
"Second Put"). Investors may exercise the Second Put only by giving written
notice thereof (the "Second Put Exercise Notice") to Powertel on or before July
31, 2003. For the purposes hereof, the effective date of the Second Put Exercise
Notice shall be known as the "Second Put Notice Date."
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B. In the event that Investors provides Powertel the Second Put
Exercise Notice, the Parties shall thereafter proceed to determine the purchase
price for the Total Subject Stock under the Second Put as set forth herein. Such
purchase price for the Total Subject Stock shall be equal to the product derived
by multiplying (a) the fair market value of the Company as of the Second Put
Notice Date (the "Fair Market Value") determined as set forth below by (b) the
percentage of the Company (determined by the Company's accountants on a
fully-diluted basis) represented by the Total Subject Stock. Upon such
determination of the purchase price as set forth hereunder, Powertel will, at
the Second Put Closing (as defined in Section 2(E) hereof), pay the purchase
price for the Total Subject Stock, at the election of Powertel, in either (i)
cash, payable by bank check or wire transfer, or (ii) shares of Powertel common
stock (the number of shares of which shall be computed by dividing (a) the
purchase price by (b) the average closing price of a single share of the
Powertel common stock traded on the NASDAQ National Market or other major
securities exchange for the ten (10) trading days prior to the day immediately
preceding the date of the Second Put Closing) (the "Second Put Shares"). The
Parties acknowledge and agree that the Second Put Shares will be "restricted
securities" as such term is defined in Rule 144 promulgated pursuant to the
Securities Act of 1933, as amended, and the certificate representing the Second
Put Shares will bear a restrictive legend to such effect. The number of Second
Put Shares that is deliverable to Investors upon exercise of the Second Put
shall be appropriately adjusted to account for any stock split, stock dividend,
stock combination or similar transaction involving or relating to the Powertel
common stock or Powertel which occurs between the date hereof and the Second Put
Closing (as defined in Section 2(E) hereof).
C. Powertel agrees that, in the event that a transaction occurs
whereby all or substantially all of Powertel's stock or assets are sold or
transferred, whether by means of a merger, consolidation, tender offer or
otherwise (collectively, a "Change of Control Transaction"), if the Second Put
is exerciseable or has been exercised, Powertel shall require as a condition to
agreeing to such Change of Control Transaction that this Agreement be
specifically assumed in writing by the party acquiring Powertel's stock or
assets (and by the party which is issuing the consideration in connection with
the Change of Control Transaction, if different), and the Second Put shall
thereafter be exercisable for such securities and/or such other property as
Investors would have received if it had held the Powertel stock subject to the
Second Put as of the date of the closing of the Change of Control Transaction
(and the securities and/or property for which the Second Put is thereby
exercisable shall be considered "Second Put Shares" under this Agreement). If,
in connection with the Change of Control Transaction, the acquiror provides the
holders of Powertel's common stock with an option to choose among various forms
of consideration, or various combinations of different types of consideration
(each a "Consideration Option"), then the Second Put shall be exercisable with
respect to the Consideration Option that includes the maximum amount of voting
securities of the party acquiring Powertel's stock or assets in the Change of
Control Transaction; provided, however, that if the securities to be issued to
the shareholders of Powertel in the Change of Control Transaction will not be,
when issued, listed or quoted on the American Stock Exchange, New York Stock
Exchange or Nasdaq National Market System, then Investors shall have the option
to exercise the Second Put solely in exchange for cash, with the amount of cash
to be received to be determined by multiplying the number of shares of Total
Subject Stock by the average per share closing price of such Total Subject Stock
as reported by the Nasdaq National Market System, or any successor exchange or
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quotation system, for the twenty trading days immediately prior to the closing
of the Change of Control Transaction. Following the closing of a Change of
Control Transaction, the number and type of securities that are deliverable to
Investors upon exercise of the Second Put shall be appropriately adjusted to
account for any stock split, stock dividend, stock combination, merger,
exchange, recapitalization or similar transaction relating to the securities for
which the Second Put is exercisable.
D. The process for determination of the Fair Market Value as
referenced in Section 2(B) shall be as follows:
(i) In the Second Put Exercise Notice, Investors shall set forth its good
faith estimate of the Fair Market Value. In the event that Powertel
provides written notice to Investors no later than ten (10) days after
the Second Put Notice Date of its agreement to Investors' estimate of
the Fair Market Value ("Powertel FMV Acceptance Notice"), such
determination of the Fair Market Value shall be final and binding on
Investors and Powertel (the "Second Put Parties") as the Fair Market
Value for the purposes hereof.
(ii) In the event that (a) Powertel provides written notice to Investors no
later than ten (10) days after the Second Put Notice Date of its
rejection of Investors' estimate of the Fair Market Value or (b)
Powertel fails to provide any notice to Investors within ten (10) days
after the Second Put Notice Date with regard to Investors' estimate of
the Fair Market Value, the Second Put Parties shall use commercially
reasonable efforts to appoint within twenty (20) days after the Second
Put Notice Date a mutually acceptable appraiser (the "Joint Appraiser")
for the purpose of determining the Fair Market Value. In the event of
such appointment, the Joint Appraiser shall determine the Fair Market
Value and submit a written report setting forth the Fair Market Value
as determined by such appraiser, the methodologies for valuation
employed by such appraiser, all information pertinent to the
determination of Fair Market Value with regard to each such methodology
and the relative weights afforded to each such methodology by such
appraiser (a "FMV Report") to each of the Second Put Parties no later
than fifty (50) days after the Second Put Notice Date. All costs and
expenses of such appraisal shall be borne equally by the Second Put
Parties. The Joint Appraiser's determination of Fair Market Value shall
be final and binding on the Second Put Parties as the Fair Market Value
for the purposes hereof.
(iii) If the Second Put Parties are unable to agree on a Joint Appraiser
within twenty (20) days after the Second Put Notice Date, each of the
Second Put Parties shall independently appoint, within thirty (30) days
after the Second Put Notice Date, an appraiser (the "Independent
Appraisers") for the purpose of determining the Fair Market Value. Each
Independent Appraiser shall determine the Fair Market Value and submit
a FMV Report to each of the Second Put Parties no later than sixty (60)
days after the Second Put Notice Date. All costs and expenses for each
such appraisal shall be borne by the party on behalf of which the
appraisal is being performed. In the event that the Independent
Appraisers' determinations of the Fair Market Value are equal, such
determination of the Fair Market Value shall be final and binding on
the Second Put Parties as the Fair Market Value for the purposes
hereof. In the event that the Independent Appraisers' determinations of
the
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Fair Market Value differ such that the greater exceeds the lesser by no
more than ten percent (10%) of the lesser, the average of the two
determinations shall be final and binding on the Second Put Parties as
the Fair Market Value for the purposes hereof. In the event that either
of the Independent Appraisers fails to make a determination of the Fair
Market Value and to submit a FMV Report no later than sixty (60) days
after the Second Put Notice Date, the determination of the Fair Market
Value by the other of the Independent Appraisers shall be final and
binding on the Second Put Parties as the Fair Market Value for the
purposes hereof.
(iv) In the event that the Independent Appraisers' determinations of the
Fair Market Value differ such that the greater exceeds the lesser by
more than ten percent (10%) of the lesser, then the Independent
Appraisers shall jointly appoint no later than seventy (70) days after
the Second Put Notice Date an additional appraiser (the "Additional
Appraiser") for the purpose of determining the Fair Market Value. The
Additional Appraiser shall determine the Fair Market Value and submit a
FMV Report no later than one hundred (100) days after the Second Put
Notice Date. In the event that the Independent Appraisers fail to
jointly appoint the Additional Appraiser no later than seventy (70)
days after the Second Put Notice Date, either of the Second Put Parties
may initiate an arbitration proceeding with the American Arbitration
Association in Atlanta, Georgia for the purpose of appointing a
replacement for the Additional Appraiser. The appointment of such
replacement for the Additional Appraiser (who, for the purposes of the
remainder of this Section 2(C)(iv), shall also be known as the
"Additional Appraiser") and the determination of the Fair Market Value
and the submission of a FMV Report to each of the Second Put Parties by
such appraiser shall occur as promptly as reasonably practicable. All
costs and expenses for the appraisal performed by the Additional
Appraiser shall be borne equally by the Second Put Parties. In the
event that the Additional Appraiser's determination of the Fair Market
Value is no more than ten percent (10%) greater than or no more than
ten percent (10%) less than each of the Independent Appraisers'
determinations of the Fair Market Value, the average of the three
determinations shall be final and binding on the Second Put Parties as
the Fair Market Value for the purposes hereof. In the event that the
Additional Appraiser's determination of the Fair Market Value is no
more than ten percent (10%) greater than or no more than ten percent
(10%) less than one of the Independent Appraisers' determinations of
the Fair Market Value and is more than ten percent (10%) greater than
or more than ten percent (10%) less than the other of the Independent
Appraisers' determinations of the Fair Market Value (the
"Non-Conforming Appraisal"), the Non-Conforming Appraisal shall be
discarded, and the average of the remaining determinations shall be
final and binding on the Second Put Parties as the Fair Market Value
for the purposes hereof. In the event that the Additional Appraiser's
determination of the Fair Market Value is more than ten percent (10%)
greater than or more than ten percent (10%) less than each of the
Independent Appraisers' determinations of the Fair Market Value, the
Additional Appraiser's determination of the Fair Market Value shall be
final and binding on the Second Put Parties as the Fair Market Value
for the purposes hereof.
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(v) Any appraiser appointed hereunder shall be a member of a nationally
recognized business appraisal organization and shall have experience in
valuing telecommunications enterprises. In determining the Fair Market
Value, any appraiser appointed hereunder shall determine the value of
the Company as a whole and shall not apply any valuation premiums or
discounts to the value of the Total Paid-In Shares (such as for
minority interest, control or lack of marketability). At any time prior
to final determination of the Fair Market Value as set forth hereunder,
each of the Second Put Parties shall be entitled to submit to any
appraiser (and, if such right is exercised, shall also submit to the
other of the Second Put Parties) any information related to the
valuation of the Company that such Party considers relevant, and such
information shall be accorded the weight that such appraiser deems
appropriate. Each of the Second Put Parties shall have an opportunity
to comment on all information provided to any appraiser by the other of
the Second Put Parties.
E. The closing of the purchase of the Total Subject Stock
pursuant to the Second Put (the "Second Put Closing") shall take place at the
offices of Morris, Manning & Martin, L.L.P., 3343 Peachtree Road, N.E., Suite
1600, Atlanta, Georgia 30326 at 10:00 a.m. Eastern time, on the twentieth (20th)
day after (i) in the event of determination of the Fair Market Value pursuant to
Section 2(D)(i), the effective date of the Powertel FMV Acceptance Notice or
(ii) in the event of determination of the Fair Market Value pursuant to Sections
2(D)(ii)-(v), the effective date of the submission of the FMV Report applicable
to the final determination of the Fair Market Value; provided, however, that (i)
if the transaction is subject to any prior regulatory approval, then the Second
Put Closing shall take place on the tenth (10th) day following the receipt of
such regulatory approval, (ii) if the date of the Second Put Closing falls on a
weekend or on a federal holiday, the Second Put Closing shall take place on the
next regular business day, and (iii) the Second Put Closing may take place at
such other place and time as Investors and Powertel agree; provided, however,
that if a Covenant Condition (as defined in Section 6) exists as of the Second
Put Closing Date, then the Second Put Closing shall take place no earlier than
the one hundredth (100th) day after the Second Put Notice Date (the "Covenant
Requirement"), unless Powertel elects to waive the Covenant Requirement and to
cause the Second Put Closing to occur in accordance with the other provisions of
this Section 2(E).
SECTION 3. RIGHT OF FIRST REFUSAL.
A. Except as set forth in Sections 1 and 2 above, Investors will
not, during the effective term of this Agreement, offer to sell, assign,
transfer, convey or otherwise dispose of (any such transaction being a
"transfer") any of the Total Subject Stock to any party, or entertain any offer
to transfer any of the Total Subject Stock from any party, except in accordance
with the provisions of this Section 3.
B. If Investors receives a bona fide offer from a third party for
the purchase of any of the Total Subject Stock (the "Offered Stock") that
Investors would like to entertain, and which offer, if accepted, would create a
binding obligation on Investors to transfer the Offered Stock (the "Third Party
Offer"), then Investors shall first give written notice (the "Third Party Offer
Notice") to Powertel and Sonera of the terms and conditions of the Third Party
Offer; provided,
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however, that if the Third Party Offer proposes consideration in a form other
than cash or cash equivalents, any such offer must also include an alternative
cash offer to Investors for the Offered Stock. The Third Party Offer Notice
shall offer Powertel the exclusive right to purchase the Offered Stock on the
same terms and conditions as are set forth in the Third Party Notice by giving
written notice thereof to Investors and Sonera not more than thirty days (30)
following the effective date of the Third Party Offer Notice, and upon giving
such notice (the "Powertel Acceptance Notice"), Powertel shall be bound to
consummate the transaction in accordance with the terms of such Third Party
Offer; provided, however, that notwithstanding the proposed closing date
contained in the Third Party Offer, the closing of such transaction (the
"Powertel Acceptance Closing") shall take place at the law offices of Morris,
Manning & Martin, L.L.P., 3343 Peachtree Road, N.E., Suite 1600, Atlanta,
Georgia 30326 at 10:00 a.m., Eastern time, on the date determined as follows:
(i) if the transaction is subject to any prior regulatory approval, then the
Powertel Acceptance Closing shall take place on the tenth (10th) day following
the receipt of such regulatory approval, (ii) if the transaction is not subject
to regulatory approval, the Powertel Acceptance Closing shall take place on the
twentieth (20th) day after the effective date of the Powertel Acceptance Notice
("Powertel Acceptance Notice Date"), (iii) if the date of the Powertel
Acceptance Closing falls on a weekend or on a federal holiday, the Powertel
Acceptance Closing shall take place on the next regular business day and (iv)
the Powertel Acceptance Closing may take place at such other place and time as
Sonera and Powertel agree; provided, however, that if a Covenant Condition (as
defined in Section 6) exists, the Powertel Acceptance Closing shall take place
no earlier than the one hundredth (100th) day after the Powertel Acceptance
Notice Date (the "Covenant Requirement") unless Powertel elects to waive the
Covenant Requirement and to cause the Powertel Acceptance Closing to occur in
accordance with the other provisions of this Section 3(B).
C. If Powertel has not timely given written notice of its
agreement to purchase the Offered Stock, then Sonera may agree to purchase the
Offered Stock on the same terms and conditions as are set forth in the Third
Party Notice by giving written notice thereof to Investors and Powertel within
the fifteen (15) day period immediately following the expiration of Powertel's
thirty (30) day exclusive period, and upon giving such notice (the "Sonera
Acceptance Notice"), Sonera shall be bound to consummate the transaction in
accordance with the terms of such Third Party Offer; provided, however, that
notwithstanding the proposed closing date contained in the Third Party Offer,
the closing of such transaction (the "Sonera Acceptance Closing") shall take
place at the offices of the Company at 10:00 a.m., Central time, on the date
determined as follows: (i) if the transaction is subject to any prior regulatory
approval, then the Sonera Acceptance Closing shall take place on the tenth
(10th) day following the receipt of such regulatory approval, (ii) if the
transaction is not subject to regulatory approval, the Sonera Acceptance Closing
shall take place on the twentieth (20th) day after the Sonera Acceptance Notice
Date, (iii) if the date of the Sonera Acceptance Closing falls on a weekend or
on a federal holiday, the Sonera Acceptance Closing shall take place on the next
regular business day and (iv) the Sonera Acceptance Closing may take place at
such other place and time as Investors and Sonera agree.
D. In the event that Powertel and Sonera fail or refuse to timely
exercise the options granted in Sections 3(B) and 3(C), Investors shall be
entitled to transfer all, but not less than all,
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of the Offered Stock to the party making the Third Party Offer on the terms and
conditions thereof within sixty (60) days after the date of such failure or
refusal. In the event that Investors shall fail timely to close the transfer of
all of the Offered Stock to such third party within the time required herein,
Investors' right to transfer the Offered Stock to such party shall be void, and
the transfer of any of the Total Subject Stock shall again be subject to the
right of first refusal granted in this Section 3.
SECTION 4. REGISTRATION RIGHTS. In the event that Powertel issues any
shares of its common stock to Investors in payment of its obligations hereunder,
Investors shall be accorded all registration and other rights set forth on Annex
I hereto.
SECTION 5. REPRESENTATIONS AT CLOSING. At the closing of any purchase
of any of the Total Subject Stock contemplated herein, all of such Total Subject
Stock being transferred to Powertel or Sonera and any common stock of Powertel
being transferred to Investors shall be issued, sold, transferred or assigned
free and clear of any and all liens, claims or encumbrances. Each of Investors,
Powertel and Sonera shall provide to the other party to the transaction the
following representations and warranties, as applicable to such party:
(a) the transferor has all requisite organizational power and
authority to issue, sell, transfer or assign the respective
stock being so transferred, and all corporate action necessary
to approve the issuance, sale, transfer or assignment of the
respective stock being so transferred has been taken;
(b) the transferor has clear and marketable title to the
respective stock being so transferred, free from any and all
liens, claims or encumbrances, and there are no outstanding
contracts, options, other rights to purchase or acquire or
other restrictions applicable to the respective stock being so
transferred;
(c) the transferor is under no obligation to obtain any prior
approval of any third party or governmental agency, including
without limitation, the Federal Communications Commission (the
"FCC"), the Federal Trade Commission or the United States
Department of Justice, for the lawful transfer of the
respective stock, except for such approvals as will be
obtained prior to the completion of such transfer;
(d) the respective stock being so transferred is duly
authorized, validly issued, fully paid and non-assessable, and
the respective stock will be issued, sold, transferred or
assigned by the transferor in conformity with all applicable
laws, including any federal and state securities laws
applicable to the transferor (assuming the accuracy of any
representations made by the acquiror with regard thereto);
(e) the acquiror is acquiring the respective stock for the
acquiror's own account solely for the purpose of investment,
and the acquiror is an "accredited investor" within the
meaning of Rule 501 under the Securities Act of 1933, as
amended.
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SECTION 6. COVENANT CONDITIONS. The parties acknowledge that as a
result of the purchase by Powertel of any of the Total Subject Stock as
contemplated herein, Powertel will additionally be required to purchase the
equity interest of the Company held by Sonera Corporation in accordance with the
terms and conditions of the Put Agreement between Powertel and Sonera
Corporation of even date herewith. The parties further acknowledge that as a
result of such purchases the Company may suffer an Adverse FCC Consequence, as
that term is defined in the Certificate of Incorporation of the Company, which
may cause certain indebtedness of the Company to become due and payable, and in
connection therewith Powertel may deem it necessary or advisable to make an
investment in the Company in order to allow the repayment or refinancing of such
indebtedness. The Parties further acknowledge that, in connection with any
investment referenced in the preceding sentence and in connection with the
purchase of any of the Total Subject Stock, Powertel may deem it necessary to
raise additional capital through the sale of its equity securities in order to
maintain compliance with certain of Powertel's debt covenants (a "Covenant
Condition"). As a result thereof, the Parties acknowledge and agree that the
closing of the purchase of any of the Total Subject Stock by Powertel hereunder
may be subject to delay as set forth in the terms and conditions governing such
closings herein.
SECTION 7. ENTIRE AGREEMENT. This Agreement constitutes the entire
Agreement between the parties with respect to the subject hereof and supersedes
all agreements, oral or written, previously made between the parties hereto
relating to the subject matter hereof; there are no other understandings or
agreements between the parties concerning the subject matter hereof.
SECTION 8. TERM AND TERMINATION. This Agreement shall terminate without
any further obligation of any Party upon the earlier to occur of: (i) the
termination of the Stock Purchase Agreement pursuant to which the Shares are to
be purchased, if such agreement is terminated prior to the sale of the Shares
thereunder; (ii) the mutual agreement of the Parties to terminate this
Agreement; or (iii) March 31, 2001, if Investors has not purchased the Shares by
such date.
SECTION 9. AMENDMENTS. This Agreement may not be altered, modified or
amended except by a writing signed by each of the Parties hereto.
SECTION 10. FURTHER ASSURANCES. Each of the Parties hereto agrees to
execute, acknowledge, deliver, file, record and publish certificates,
instruments, agreements and documents, and to take all action which may be
required by law or may be deemed by the Parties, in the exercise of their
reasonable good faith discretion, to be reasonably necessary in furtherance of
the purposes and the objectives and intentions underlying this Agreement and not
inconsistent with the terms hereof.
SECTION 11. NOTICES. All notices required or permitted hereunder shall
be in writing and shall be deemed effectively given: (a) upon personal delivery
to the Party to be notified; (b) when sent by confirmed telex or facsimile if
sent during normal business hours of the recipient, if not, then on the next
business day; (c) five (5) days after having been sent by registered or
certified mail, return receipt requested, postage prepaid; or (d) two (2) days
after
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deposit with a nationally recognized overnight courier, specifying next day
delivery, with written verification of receipt. All communications shall be sent
to the Parties hereto at the respective addresses set forth below, or as
notified by such Party from time to time at least ten (10) days prior to the
effectiveness of such notice:
If to Investors:
Mr. James O. Hayles, Jr.
Eliska Wireless, Inc.
28187 Burkert Drive
Orange Beach, Alabama 36561
Facsimile: (334) 981-6043
with a copy to (which shall not constitute notice):
Jonathan V. Cohen, Esq.
Wilkinson Barker Knauer, L.L.P.
2300 N Street, N.W., Suite 700
Washington, DC 20037-1128
Facsimile: (202) 783-5851
If to Powertel:
Jill F. Dorsey, Esq.
Vice President and General Counsel
Powertel, Inc.
1239 O.G. Skinner Drive
West Point, Georgia 31833
Facsimile: (706) 645-9532
With a copy to (which shall not constitute notice):
James Walker, Esq.
Morris, Manning & Martin, LLP
1600 Atlanta Financial Center
3343 Peachtree Road, N.E.
Atlanta, GA 30326
Facsimile: (404) 365-9532
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If to Sonera:
Maire Laitinen
Sonera Holding B.V.
c/o Sonera Corporation
Teollisuuskatu 15
FIN - 0051 - Sonera
Helsinki, Finland
Facsimile: 011 358 2040 3414
with a copy to (which shall not constitute notice):
Richard M. Stolbach, Esq.
Patton Boggs LLP
2550 M Street, NW
Washington, DC 20037-1350
Facsimile: (202) 457-6315
SECTION 12. GOVERNING LAW. This Agreement shall be governed by,
interpreted under and construed in accordance with the laws of the State of
Delaware applicable to contracts made and to be performed therein, without
giving effect to the principles of conflicts of law. Except in respect to an
action commenced by a third party in another jurisdiction, Investors, Powertel
and Sonera agree that any legal suit, action or proceeding arising out of or
relating to this Agreement must be instituted in a state or federal court in the
State of Delaware, if there is any such court which has and will exercise its
jurisdiction in any such matter, and they hereby irrevocably subject to the
jurisdiction of any such court and agree not to assert therein any objection
based on venue or the inconvenience of such forum.
SECTION 13. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same Agreement. This Agreement may be
executed and delivered by facsimile.
SECTION 14. NO THIRD PARTY BENEFICIARIES. This Agreement shall be
binding upon and inure solely to the benefit of the parties hereto and their
successors and assigns and nothing herein, express or implied, is intended to or
shall confer upon any other person any legal or equitable right, benefit or
remedy of any nature whatsoever under or by reason of this Agreement.
SECTION 15. EXPENSES. Except as otherwise provided, all costs and
expenses, including, but not limited to, fees and disbursements of counsel,
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such costs and expenses.
SECTION 16. SPECIFIC PERFORMANCE. Notwithstanding anything to the
contrary herein, if any Party to this Agreement fails to perform any of its
obligations hereunder,
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in addition to any other remedies that may be available to the non-breaching
Party, the non-breaching Party may pursue any remedies that it has available in
equity, including the remedy of specific performance, which shall specifically
include the right to compel the breaching Party to consummate the transactions
contemplated hereunder in accordance with the terms of this Agreement.
SECTION 17. ASSIGNMENT. This Agreement may not be assigned by operation
of law or otherwise without the express written consent of the Parties hereto
(which consent may be granted or withheld in the sole discretion of any such
Party), except that Powertel may assign its obligations hereunder to an acquiror
of Powertel in a Change of Control transaction pursuant to Section 1(C) or
Section 2(C) hereof.
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<PAGE> 14
IN WITNESS WHEREOF, the undersigned have executed this Agreement as of
the date and year first written above.
ELISKA WIRELESS INVESTORS I, L.P.
By: ELISKA WIRELESS INC.,
its General Partner
By: /s/ James O. Hayles, Jr.
------------------------------------
Name: James O. Hayles, Jr.
----------------------------------
Title: President
---------------------------------
POWERTEL, INC.
By: /s/ Allen E. Smith
------------------------------------
Name: Allen E. Smith
----------------------------------
Title: Chief Executive Officer
---------------------------------
SONERA HOLDING B.V.
By: /s/ Olli Tuohimaa
------------------------------------
Name: Olli Tuohimaa
----------------------------------
Title: Attorney-in-Fact
---------------------------------
[Put Agreement among Eliska Wireless Investors I, L.P., Powertel, Inc., and
Sonera Holding B.V.]
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ANNEX I
Registration Rights
(a) Investors shall be accorded all registration and other rights
set forth herein with regard to any shares of the common stock of Powertel
issued to Investors in payment of Powertel's obligations hereunder (the
"Powertel Shares") and any shares of the common stock of Powertel issued on
account of the Powertel Shares (collectively, the "Securities").
At any time after any closing hereunder pursuant to which Investors
obtains Powertel Shares, if Powertel proposes to file a registration statement
under the Securities Act of 1933, as amended (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 Securities and Exchange Commission (the "Commission")) or (ii)
for the account of any holders of its securities (including pursuant to a demand
registration), then Powertel shall give written notice of such proposed filing
to Investors as soon as practicable (but in any event not less than five (5)
Business Days (as defined below) before the anticipated filing date), and such
notice shall offer Investors the opportunity to register such number of shares
of Securities as Investors requests (the shares subject to such request and any
other request hereunder being referred to as the "Subject Stock"). For the
purposes hereof, "Business Day" means any day other than a Saturday, Sunday or a
day on which banking institutions in the State of New York are authorized or
obligated by law to close. If Investors wishes to register securities of the
same class or series as Powertel or such holder, such registration shall be on
the same terms and conditions as the registration of Powertel'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 Powertel 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 Investors shall be reduced prior to any reduction in the number of
securities to be registered pursuant to clauses (i) and (ii) of the first
sentence of this paragraph and may be reduced proportionately to the shares of
other holders of similar piggyback registration rights; provided, however, that
Powertel must provide prompt written notice of such written opinion to
Investors.
(b) In connection with any offering of shares of Subject Stock
registered pursuant to this Annex I, Powertel (i) shall furnish to Investors
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 Powertel 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 Investors shall reasonably request;
provided, however, that Powertel 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 in which such a consent has not been previously filed. If
applicable, Powertel and Investors shall enter into an underwriting agreement
with a lead underwriter selected by Powertel (reasonably satisfactory to
Investors) containing representations,
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warranties, indemnities and agreements then customarily included by an issuer in
underwriting agreements with respect to secondary distributions; provided,
however, that such underwriter shall agree to use its 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 I, Powertel shall (x) furnish to
the lead underwriter, at Powertel'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. If Investors enters into an underwriting agreement with respect to the
Subject Stock, Investors' representations, warranties and indemnities contained
therein shall be made severally rather than jointly with Powertel or any other
selling stockholder and shall be limited to (i) Investors' ownership of the
Subject Stock, (ii) Investors' authority to enter into the underwriting
agreement and related matters, (iii) any information provided by Investors for
inclusion in the registration statement, and (iv) such other matters as are at
the time of such underwriting customarily included in underwriting agreements
relating to sales of common stock by a selling stockholder where the failure by
Investors to make such representations, warranties or indemnities causes a lead
underwriter to refuse to conduct or complete the offering. In the event an
offering of Subject Stock fails to close due to Investors' unwillingness,
inability or other failure to comply with clause (iv) of the immediately
preceding sentence, then Investors agrees that Powertel shall be deemed to have
satisfied all of its obligations to conduct the related offering of such Subject
Stock, shall be excused from any failure of any obligation of Powertel with
respect thereto and shall not be liable for the failure of such offering of such
Subject Stock to close. Upon any registration becoming effective pursuant to
this Annex I, Powertel 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) Investors shall pay all underwriting discounts and commissions
related to shares of Subject Stock being sold by Investors and the fees and
disbursements of counsel and other advisors to Investors. Any fees and
disbursements of underwriters customarily paid by issuers in secondary offerings
shall be paid by Powertel.
(d) In the case of any offering registered pursuant to this Annex
I, Powertel agrees to indemnify and hold Investors, each underwriter of Subject
Stock 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 Investors, 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 shall 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 Powertel shall have
filed with the Commission any
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amendment thereof or supplement thereto), if used prior to the effective date of
such registration statement, or contained in the prospectus (as amended or
supplemented if Powertel 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 Investors 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 Powertel by Investors 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 Powertel 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
I, Investors 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 I,
severally to indemnify and hold harmless Powertel and each person, if any, who
controls Powertel within the meaning of Section 15 of the Securities Act, and
the directors and officers of Powertel, and in the case of each such
underwriter, Investors, each person, if any, who control Investors within the
meaning of the Securities Act and the directors, officers and partners of
Investors, 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
Powertel by Investors 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 I 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 I, 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
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notice from the indemnifying party to such indemnified party of its election so
to assume the defense thereof, the indemnifying party shall not be liable to
such indemnified party under paragraph (d) or (e) of this Annex I 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 Powertel and
the prospective seller of Subject Stock 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 Powertel and such
prospective seller from the offering of the securities covered by such
registration statement. No Person (as defined below) 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. For the purposes hereof, "Person" means any
individual, partnership, limited liability company, firm, corporation,
association, trust, joint venture, unincorporated organization or other entity,
as well as any syndicate or group that would be deemed to be a person under
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended. 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 aggregate
purchase price paid by Investors for the securities in Eliska Wireless Ventures
I, Inc., which securities were exchanged for the Powertel Shares pursuant to
this Agreement.
(i) Notwithstanding the foregoing, to the extent that the
provisions of indemnification and contribution contained in an underwriting
agreement entered into in connection with any
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underwritten public offering are in conflict with the foregoing provisions, the
provisions set forth in the underwriting agreement shall control.
I-5
