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EXHIBIT 3
BURTON 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.
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"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
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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
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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,
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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.
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.
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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 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 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
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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).
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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
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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):
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(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
3650 131st Avenue SE, Suite 400
Bellevue, WA 98006
Attn: General Counsel
Telecopy No.: 425-586-8080
with a copy to:
Preston Gates & Ellis LLP
701 Fifth Avenue, Suite 5000
Seattle, WA 98104
Attn: Richard B. Dodd, Esq.
Telecopy No: 206-623-7022
(the remainder of this page is intentionally left blank)
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IN WITNESS WHEREOF, the parties hereto have executed this
Powertel Stockholders Agreement as of this 26th day of August, 2000.
VOICESTREAM WIRELESS
CORPORATION
By: /s/ Cregg Baumbaugh
-----------------------------------
Name: Cregg Baumbaugh
Title: Executive Vice President - Finance,
Strategy and Development
STOCKHOLDERS:
By: /s/ Donald W. Burton
--------------------------------------
Name: Donald W. Burton
Title:
THE BURTON PARTNERSHIP, L.P.
By: /s/ Donald W. Burton
--------------------------------------
Name: Donald W. Burton
Title: General Partner
THE BURTON PARTNERSHIP (QP), L.P.
By: /s/ Donald W. Burton
--------------------------------------
Name: Donald W. Burton
Title: General Partner
SOUTH ATLANTIC VENTURE FUND II
By: South Atlantic Partners II, L.P.
Title: General Partner
By: /s/ Donald W. Burton
--------------------------------------
Name: Donald W. Burton
Title: Chairman
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SOUTH ATLANTIC VENTURE FUND III
By: South Atlantic Partners III, L.P.
Title: General Partner
By: /s/ Donald W. Burton
--------------------------------------
Name: Donald W. Burton
Title: Chairman
SOUTH ATLANTIC PRIVATE
EQUITY FUND IV, L.P.
By: South Atlantic Private
Equity Partners IV, Inc.
Title: General Partner
By: /s/ Donald W. Burton
--------------------------------------
Name: Donald W. Burton
Title: Chairman
SOUTH ATLANTIC PRIVATE
EQUITY FUND IV (QP), L.P.
By: South Atlantic Private
Equity Partners IV, Inc.
Title: General Partner
By: /s/ Donald W. Burton
--------------------------------------
Name: Donald W. Burton
Title: Chairman
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SCHEDULE I
<TABLE>
<CAPTION>
Number and Description of Existing
Stockholder Name and Address Number of Existing Shares Rights
---------------------------- ------------------------- ----------------------------------
<S> <C> <C>
Donald W. Burton Options to acquire 10,000 shares of
614 West Bay Street, Suite 200 Powertel Common Stock
Tampa, Florida 33606
The Burton Partnership, L.P., Donald 116,104 Shares of Powertel
W. Burton, General Partner Common Stock
The Burton Partnership (QP), L.P., 348,313 Shares of Powertel
Donald W. Burton, General Partner Common Stock
South Atlantic Venture Fund II, L.P.; 654,893 Shares of Powertel
South Atlantic Venture Partners II, Common Stock
L.P., general partner, of which Mr.
Burton is managing general partner
South Atlantic Venture Fund III, L.P.; 464,417 Shares of Powertel
South Atlantic Partners III, L.P., Common Stock
sole general partner, of which Mr.
Burton is chairman
South Atlantic Private Equity Fund 4,200 Shares of Powertel Common
IV, L.P.; South Atlantic Private Stock
Equity Partners IV, sole general
partner, of which Mr. Burton is
chairman
South Atlantic Private Equity Fund 5,800 Shares of Powertel Common
IV (QP) L.P.; South Atlantic Private Stock
Equity Partners IV, Inc., sole general
partner, of which Mr. Burton is
chairman
</TABLE>
<PAGE> 14
ANNEX A
REGISTRATION RIGHTS
(a) The Stockholder shall have the right at any time after the
Effective Time to make THREE requests, ONE of which may be a Shelf Request (as
defined in paragraph (b) hereof) 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 Stockholder were converted (the
"SECURITIES") with respect to the first of any such request to register under
the Securities Act at least $10 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 (other than in the case of
a Shelf Registration, in which case effectiveness must be maintained for an
aggregate of six months or until completion of the offering, whichever occurs
first). 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 Annex for as
long as it reasonably deems necessary (but no longer than 90 days) if
VoiceStream
A-1
<PAGE> 15
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, other than Stockholder's, 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 holders of its securities (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 10 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
to be registered pursuant to clauses (i) and (ii) of the first sentence of this
paragraph; 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) Upon the request of the Stockholder (the "SHELF REQUEST"),
VoiceStream shall:
(i) as promptly as reasonably practicable, prepare and
file pursuant to SEC Rule 415 on Form S-3 or such other form as VoiceStream in
its discretion shall determine with the SEC, and thereafter shall use all
reasonable efforts to cause to be declared effective as promptly as reasonably
practicable, a Shelf Registration Statement relating to the offer and sale of
the Shares by the Stockholder from time to time in accordance with the methods
of distribution elected by the Stockholder and set forth in the Shelf
Registration Statement;
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<PAGE> 16
(ii) use all reasonable efforts to keep the Shelf
Registration Statement effective in order to permit the prospectus forming part
thereof to be useable by the Stockholder for an aggregate period of six months,
or for such shorter period that will terminate when all Shares covered by the
Shelf Registration Statement have been sold pursuant to the Shelf Registration
Statement or cease to be outstanding; and
(iii) notwithstanding any other provisions hereof, use all
reasonable efforts to ensure that (A) any Shelf Registration Statement and any
amendments thereto and any prospectus forming part thereof and any supplement
thereof complies in all material respects with the Securities Act and the rules
and regulation thereunder, (B) any Shelf Registration Statement and any
amendment thereto does not, when it becomes effective, contain an untrue
statement of material fact or omit to state 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 and (C) any prospectus
forming part of any Shelf Registration Statement, and any supplement to such
prospectus (as amended or supplemented from time to time), does not include an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements, in light of the circumstances under which they
were made, not misleading.
(c) 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 in which such a consent has
not been previously tried. 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. If Stockholder enters
into an underwriting agreement with respect to the Subject Stock, Stockholder's
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) Stockholder's ownership of the Subject Stock, (ii)
Stockholder's authority to enter into the underwriting agreement and
A-3
<PAGE> 17
related matters, (iii) any information provided by Stockholder for inclusion in
the registration statement, and (iv) such other matters as are at the time of
such underwriting customarily included in underwriting agreements with the
Managing Underwriter relating to sales of common stock by a selling shareholder
where the failure by the Stockholder to make such representations, warranties or
indemnities causes the Managing Underwriter to refuse to conduct or complete the
offering. In the event an offering of Subject Stock fails to close due to the
Stockholder's unwillingness, inability or other failure to comply with clause
(iv) of the immediately preceding sentence, then Stockholder agrees that
VoiceStream 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 VoiceStream 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 (other than a Shelf
Registration Statement), 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.
(d) 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) (which may be the Shelf
Request, if any) 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.
(e) 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
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 VoiceStream shall have filed with the Commission any 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 VoiceStream shall have filed with the Commission
A-4
<PAGE> 18
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 (e) 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.
(f) 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 (e) 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 preliminary
prospectus or prospectus contained in such registration statement or any such
amendment thereof or supplement thereto.
(g) Each party indemnified under paragraph (e) or (f) 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 (e) or (f) 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
A-5
<PAGE> 19
the defense thereof, and after 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
(e) or (f) 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.
(h) If the indemnification provided for under paragraph (e) or (f)
shall for any reason be held by a court to be unavailable to an indemnified
party under paragraph (e) or (f) 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 (e) or (f) hereof, the indemnified party and the
indemnifying party under paragraph (e) or (f) 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 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.
(i) 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 (e) or (f) shall be an amount equal to the gross
proceeds from the applicable offered received by the Stockholder.
(j) 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.
(k) Any successor to VoiceStream (whether by merger,
consolidation, sale of assets, assignment or otherwise) shall expressly assume
in writing VoiceStream's obligations hereunder.
A-6
