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INVESTOR AGREEMENT
BY AND AMONG
AT&T CORP.,
AT&T WIRELESS SERVICES, INC.
AND
NTT DOCOMO, INC.
DATED AS OF DECEMBER 20, 2000,
AMENDED AND RESTATED AS OF DECEMBER 20, 2001
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TABLE OF CONTENTS
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ARTICLE I
DEFINITIONS
Section 1.1 Definitions...................................................................1
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of AT&T.......................................10
Section 2.2 Representations and Warranties of AT&T Wireless..............................11
Section 2.3 Representations and Warranties of DoCoMo and each Designee...................11
ARTICLE III
GOVERNANCE AND STANDSTILL PROVISIONS
Section 3.1 Board of Directors...........................................................12
Section 3.2 Pre-Spin-off Governance Rights...............................................15
Section 3.3 Post-Spin-off Governance Rights..............................................17
Section 3.4 Senior Leadership Team.......................................................17
Section 3.5 Management Positions.........................................................18
Section 3.6 Standstill Restrictions......................................................18
Section 3.7 Termination of the Standstill Restrictions...................................23
Section 3.8 Voting.......................................................................25
ARTICLE IV
OTHER COVENANTS
Section 4.1 Technology Commitment........................................................25
Section 4.2 Joint Research and Development Effort........................................26
Section 4.3 Technology Default Right.....................................................26
Section 4.4 No Spin-off Repurchase Right.................................................32
Section 4.5 Reinvestment Right...........................................................33
Section 4.6 Financial Statement Cooperation..............................................35
ARTICLE V
MOBILE MULTIMEDIA ALLIANCE
Section 5.1 The Mobile Multimedia Alliance and the MMS...................................36
Section 5.2 Technology Evolution and Timing..............................................36
Section 5.3 Contributions and Resources..................................................37
Section 5.4 Advisory Committee and Senior Management.....................................39
Section 5.5 Business Plan................................................................39
Section 5.6 Termination..................................................................40
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Section 5.7 Other Operational Cooperation................................................40
ARTICLE VI
TRANSFER RESTRICTIONS
Section 6.1 Transfer Restrictions........................................................41
ARTICLE VII
REGISTRATION RIGHTS
Section 7.1 Demand Registrations.........................................................43
Section 7.2 Piggy-Back Registration......................................................45
Section 7.3 Limitations on Demand Registrations; Termination
of Registration Obligation.................................................46
Section 7.4 Registration Procedures......................................................47
Section 7.5 Registration Expenses........................................................52
Section 7.6 Indemnification; Contribution................................................52
ARTICLE VIII
PREEMPTIVE RIGHTS
Section 8.1 Preemptive Rights............................................................55
Section 8.2 Limitation of Preemptive Rights..............................................58
ARTICLE IX
EFFECTIVENESS AND TERMINATION
Section 9.1 Effectiveness................................................................59
Section 9.2 Termination..................................................................59
Section 9.3 Partial Termination..........................................................59
ARTICLE X
NON-COMPETITION; CONFIDENTIALITY
Section 10.1 Non-Competition Restrictions.................................................59
Section 10.2 Definitions..................................................................60
Section 10.3 Duration of and Limitations on Restrictions..................................61
Section 10.4 Non-Disclosure Commitment....................................................62
ARTICLE XI
MISCELLANEOUS
Section 11.1 Injunctive Relief............................................................64
Section 11.2 Successors and Assigns.......................................................64
Section 11.3 Amendments; Waiver...........................................................64
Section 11.4 Notices......................................................................64
Section 11.5 Governing Law................................................................66
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Section 11.6 Arbitration..................................................................66
Section 11.7 Headings.....................................................................67
Section 11.8 Entire Agreement.............................................................68
Section 11.9 Severability.................................................................68
Section 11.10 Submission to Jurisdiction; Waivers..........................................68
Section 11.11 Waiver of Immunity...........................................................68
Section 11.12 Waiver of Jury Trial.........................................................69
Section 11.13 Counterparts.................................................................69
Section 11.14 Interpretation...............................................................69
Section 11.15 Anti-Dilution Adjustments....................................................69
Section 11.16 Effectiveness of this Agreement..............................................69
Section 11.17 No Third Party Beneficiaries.................................................69
Section 11.18 Substitution for AT&T Wireless...............................................70
Exhibit A ......................................Cost of Carry
Exhibit B ......................................List of Separation Agreements
Schedule 3.4 ...................................Senior Leadership Team
Schedule 4.1 ...................................Top 50 U.S. BTAs
Schedule 5.3(b) ................................Mobile Multimedia Support/Contribution
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THIS AMENDED AND RESTATED INVESTOR AGREEMENT is entered into by and
between AT&T Wireless Services, Inc. and NTT DoCoMo, Inc., as of December 20,
2001, and amends and restates that INVESTOR AGREEMENT (the "Agreement"), entered
into by and among AT&T Corp., a New York corporation ("AT&T"), AT&T Wireless
Services, Inc., a Delaware corporation and a wholly-owned subsidiary of AT&T
("AT&T Wireless"), and NTT DoCoMo, Inc., a company incorporated under the laws
of Japan ("DoCoMo"), dated as of December 20, 2000, but effective and binding
upon the parties only as specified in Section 11.16.
W I T N E S S E T H:
WHEREAS, AT&T, AT&T Wireless and DoCoMo have entered into a Letter
Agreement, dated November 30, 2000 (including the Term Sheet and other schedules
and attachments thereto, the "Letter Agreement"), that sets forth the agreements
among the parties for an investment by DoCoMo in the Wireless Group and, after
the Spin-off, in AT&T Wireless, and a related mobile multimedia alliance;
WHEREAS, AT&T, AT&T Wireless and DoCoMo are entering into a
Securities Purchase Agreement, dated as of the date hereof (as it may be amended
from time to time, the "Purchase Agreement"), pursuant to which, among other
things, DoCoMo will purchase 812,511.778 shares of New Tracking Stock (as
defined in the Purchase Agreement) and Warrants to purchase an additional
83,496.546 shares of New Tracking Stock, which will be converted, in connection
with the Spin-off, into shares of Current Wireless Tracking Stock, which shares
of Current Wireless Tracking Stock will then immediately be exchanged for shares
of AT&T Wireless Common Stock, and Warrants to purchase shares of AT&T Wireless
Common Stock (collectively, the "Investment");
WHEREAS, the Letter Agreement contemplates that the agreements
contained therein would be superseded by definitive agreements, including (1)
the Purchase Agreement, (2) a Warrant Agreement and (3) this Agreement; and
WHEREAS, AT&T, AT&T Wireless and DoCoMo desire to establish in this
Agreement certain terms and conditions concerning the Investment and the
Alliance, and related provisions concerning DoCoMo's relationship with AT&T and
AT&T Wireless following the Closing.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth herein and for other good and valuable consideration,
receipt and sufficiency of which is hereby acknowledged, the parties hereto
hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. In addition to other terms defined
elsewhere in this Agreement, as used in this Agreement, the following terms
shall have the meanings ascribed to them below:
"Acquired SpinCo Shares" shall have the meaning assigned in Section
4.5.
"Acquired SpinCo Warrants" shall have the meaning assigned in
Section 4.5.
"Additional Securities" shall have the meaning assigned in Section
8.1(a).
"Advisory Committee" shall have the meaning assigned in Section
5.4(b).
"Affiliate" shall mean a Person that directly, or indirectly through
one or more intermediaries, controls, or is controlled by, or is under common
control with, a specified Person; provided, however, that for so long as At Home
Corporation, a Delaware corporation or Liberty Media Corporation, a Delaware
corporation, and each other corporation constituting part of the Liberty Media
Group as defined in AT&T's certificate of incorporation, and their successors
and assigns ("At Home" and "Liberty Media," respectively) has any public
stockholders (directly, or through a tracking stock or similar concept), At Home
or Liberty Media, as the case may be, and any Affiliates or Subsidiaries of
Liberty Media, At Home or any of their respective Subsidiaries shall not be
treated as or deemed to be Affiliates of AT&T or of any of AT&T's Subsidiaries
or Affiliates for purposes hereof. For the purposes of this definition,
"control," (including, with correlative meanings, the terms "controlling",
"controlled by" and "under common control with"), as applied to any Person,
means the possession, directly or indirectly, of the power to direct or cause
the direction of the management and policies of that Person, whether through the
ownership of voting securities or by contract or otherwise.
"Agreement" shall have the meaning assigned in the preamble hereto.
"Alliance" shall have the meaning assigned in Section 5.1(a).
"Alliance Partners" shall have the meaning assigned in Section
5.1(a).
"Arbitration Claims" shall have the meaning assigned in Section
11.6.
"AT&T" shall have the meaning assigned in the preamble hereto.
"AT&T Wireless" shall have the meaning assigned in the preamble
hereto.
"AT&T Wireless Common Stock" shall mean the shares of common stock,
par value $.01 per share, of AT&T Wireless as of and following the Spin-off.
"AT&T Wireless Stock" shall mean, collectively, New Tracking Stock,
Current Wireless Tracking Stock, AT&T Wireless Common Stock and Warrants.
"Beneficially Own" shall mean, with respect to any securities,
having "beneficial ownership" of such securities for purposes of Rule 13d-3 or
13d-5 under the Exchange Act as in effect on the date hereof, and "Beneficial
Ownership" shall have the corresponding meaning.
"Blackout Period" shall have the meaning assigned in Section 7.1(b).
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"Board" shall mean at any time the Board of Directors of AT&T (if
the Spin-off has not been consummated at such time) or AT&T Wireless (if the
Spin-off has been consummated at such time).
"Business Day" shall mean any day other than a Saturday, Sunday or a
legal holiday in New York City or Tokyo, Japan, or any other day on which
commercial banks in those locations are authorized or required by law or
government decree to close.
"Business Plan" shall have the meaning assigned in Section 5.5(a).
"Certificate of Amendment" shall mean the Certificate of Amendment
creating the New Tracking Stock, in the form set forth as Exhibit A to the
Purchase Agreement.
"cHTML" shall mean Compact HyperText Markup Languages.
"Claims" shall have the meaning assigned in Section 7.6(a).
"Closing" shall have the meaning assigned in the Purchase Agreement.
"Closing Date" shall have the meaning assigned in the Purchase
Agreement.
"Competes" shall have the meaning assigned in Section 10.2(a).
"Controlled Subsidiary" shall mean (a) with respect to DoCoMo each
of (i) each Subsidiary of DoCoMo and (ii) each other Person in which DoCoMo has
a direct or indirect investment or other economic interest and to which DoCoMo,
or any of DoCoMo's Subsidiaries, has disclosed any material non-public
information concerning AT&T, AT&T Wireless, the MMS or the Investment and (b)
with respect to either of AT&T or AT&T Wireless, its Subsidiaries.
"Cost of Carry" shall mean an interest rate per annum determined in
accordance with Exhibit A hereto.
"Current Market Price" on any date in question means the average of
the daily Market Values for the relevant security for the five consecutive
trading days ending on the day before the date in question.
"Current Wireless Tracking Stock" shall mean Wireless Group Common
Stock, par value $1.00 per share, of AT&T.
"Demand Registration" shall have the meaning assigned in Section
7.1(a).
"Demand Request" shall have the meaning assigned in Section 7.1(a).
"Demand Shares" shall have the meaning assigned in Section 7.1(a).
"Designee" shall have the meaning assigned in Section 6.1(a). Each
Person that is a Designee at any relevant time shall be deemed to be a party to
this Agreement for all purposes hereof.
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"Director" shall mean any member of the Board.
"DoCoMo" shall have the meaning assigned in the preamble hereto. For
purposes of any provision hereof relating to the ownership of AT&T Wireless
Stock and the rights and obligations attendant thereto, the term "DoCoMo" shall
also include any Person that is a Designee at the relevant time, became such in
accordance with Section 6.1(a) hereof, and has executed and is a party to this
Agreement.
"DoCoMo AT&T Nominee" shall have the meaning assigned in Section
3.1(a).
"DoCoMo AT&T Wireless Nominees" shall have the meaning assigned in
Section 3.1(b).
"Economic Interest Percentage" of DoCoMo in AT&T Wireless shall
mean, calculated at any particular point in time, the ratio, expressed as a
percentage, of (a) prior to consummation of the Spin-off, (x) the number of
shares of Current Wireless Tracking Stock Beneficially Owned by DoCoMo at the
relevant time assuming conversion of any shares of New Tracking Stock (excluding
any shares Beneficially Owned by virtue of ownership of unexercised Warrants) to
(y) the denominator of the Wireless Group Allocation Fraction at the relevant
time, adjusted on a Fully Diluted Basis but without giving effect to any
unexercised Warrants; and (b) after consummation of the Spin-off, (x) the number
of shares of AT&T Wireless Common Stock Beneficially Owned by DoCoMo at the
relevant time (excluding any shares Beneficially Owned by virtue of ownership of
unexercised Warrants)to (y) the total number of shares of AT&T Wireless Common
Stock outstanding at the relevant time, on a Fully Diluted Basis but without
giving effect to any unexercised Warrants .
"Economic Interests" in AT&T Wireless or the Wireless Group shall
mean (a) at any time prior to consummation of the Spin-off, (i) AT&T's Retained
Wireless Interest and (ii) shares of Current Wireless Tracking Stock, including
securities of AT&T (including New Tracking Stock) that by their terms are
convertible into or exercisable or exchangeable for shares of Current Wireless
Tracking Stock, and (b) at any time following consummation of the Spin-off, (i)
shares of AT&T Wireless Common Stock, including securities of AT&T Wireless that
by their terms are convertible into or exercisable or exchangeable for shares of
AT&T Wireless Common Stock and (ii) shares of any class of preferred stock of
AT&T Wireless that by their terms are entitled to receive dividends or
participate in dividends together with the AT&T Wireless Common Stock.
"Effective Period" shall have the meaning assigned in Section
7.4(a)(iii).
"Equity Shares" shall mean (a) at any time prior to consummation of
the Spin-off, shares of Current Wireless Tracking Stock, including securities
that by their terms are convertible into or exercisable or exchangeable for
shares of Current Wireless Tracking Stock, and any other equity securities of
AT&T that represent solely or primarily economic interests in the Wireless
Group, and (b) at any time following consummation of the Spin-off, Equity Common
Shares and Equity Other Shares.
"Equity Common Shares" shall mean (a) at any time prior to
consummation of the Spin-off, shares of Current Wireless Tracking Stock,
including securities that by their terms are
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convertible into or exercisable or exchangeable for shares of Current Wireless
Tracking Stock, and any other equity securities of AT&T that represent solely or
primarily economic interests in the Wireless Group, and (b) at any time
following consummation of the Spin-off, (i) shares of AT&T Wireless Common
Stock, including securities that by their terms are, directly or through a
series of one or more steps, convertible into or exercisable or exchangeable for
shares of AT&T Wireless Common Stock and (ii) shares of any other class or
series of common stock or preferred stock of AT&T Wireless which, if issued,
would increase the denominator used to calculate DoCoMo's Economic Interest
Percentage.
"Equity Other Shares" shall mean at any time following consummation
of the Spin-off, any shares of capital stock of AT&T Wireless that are not
Equity Common Shares, including, without limitation, shares of any class of
preferred stock of AT&T Wireless and any securities that by their terms are,
directly or through a series of one or more steps, convertible into or
exercisable or exchangeable for any such shares of capital stock.
"Excess Securities" shall have the meaning assigned in Section
8.1(e).
"Exchange Act" shall mean the Securities Exchange Act of 1934, or
any successor federal statute, and the rules and regulations promulgated
thereunder, all as amended, and as the same may be in effect from time to time.
"Exchange Offer" shall have the meaning assigned in Section 3.2(a).
"Fully Diluted Basis" shall mean based on the total number of shares
of the relevant class of stock or type of equity interest that would be
outstanding on the relevant date assuming the exercise of all options, warrants
and other rights to acquire such relevant class of stock or type of equity
interest (without regard to exercisability, vesting or similar provisions and
restrictions thereof) and the conversion or exchange of all securities
convertible into or exchangeable for stock or equity interest (without regard to
exercisability, vesting or similar provisions and restrictions thereof);
provided that the number of such shares or interests that would be outstanding
assuming the exercise of then-outstanding options and warrants shall be computed
on the Treasury Method.
"HDML" shall mean Handheld Device Markup Languages.
"HTML" means HyperText Markup Language.
"Home Territory" shall mean the nation of Japan for DoCoMo, and the
United States, Canada and Mexico for AT&T Wireless.
"i-mode mobile multimedia" shall mean wireless internet access and
related mobile multimedia applications and services from wireless phones and
other wireless access devices based on DoCoMo's i-mode and multimedia expertise,
experience, know-how and technology.
"Investment" shall have the meaning assigned in the recitals hereto.
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"Investor Rights Termination Event" shall have the meaning assigned
in Section 3.1(d).
"Issuer" shall mean AT&T or AT&T Wireless, as the case may be, in
its capacity as issuer of Registrable Securities for purposes of Article VII or
as issuer of Additional Securities for purposes of Article VIII.
"Letter Agreement" shall have the meaning assigned in the preamble
hereto.
"Market Value" means, with respect to a particular security, on any
given day, the average of the highest and lowest reported sale prices regular
way or, in case no such reported sales take place on such day, the average of
the highest asked and lowest bid prices regular way, in either case on the
principal national securities exchange on which the applicable security is
listed or admitted to trading, or if not listed or admitted to trading on any
national securities exchange, (i) the average of the highest and lowest sale
prices for such day reported by the Nasdaq Stock Market if such security is
traded over-the-counter and quoted in the Nasdaq Stock Market, or (ii) if such
security is so traded, but not so quoted, the average of the highest reported
asked and lowest reported bid prices of such security as reported by the Nasdaq
Stock Market or any comparable system, or (iii) if such security is not listed
on the Nasdaq Stock Market or any comparable system, the average of the highest
asked and lowest bid prices as furnished by two members of the National
Association of Securities Dealers, Inc. selected from time to time by the Board
for that purpose.
"Maximum Number" shall have the meaning assigned in Section 7.2(b).
"MMS" shall have the meaning assigned in Section 5.1(c).
"MMS CEO" shall have the meaning assigned in Section 5.4(a).
"Mobile Multimedia Contribution" shall have the meaning assigned in
Section 10.2(b).
"Mobile Telecommunications Infrastructure" shall have the meaning
assigned in Section 10.2(d).
"New Tracking Stock" shall mean shares of Wireless Group Preferred
Tracking Stock, par value $1.00 per share, of AT&T having the terms set forth in
the Certificate of Amendment.
"No Spin-off Repurchase Price" shall have the meaning assigned in
Section 4.4(a).
"No Spin-off Right" shall have the meaning assigned in Section
4.4(a).
"Nominee Disclosure Information" shall have the meaning assigned in
Section 3.1(a).
"NYSE" shall mean the New York Stock Exchange, Inc.
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"Original Investment Shares" means the shares of New Tracking Stock
acquired by DoCoMo pursuant to the Purchase Agreement and any shares of Current
Wireless Tracking Stock issued upon conversion thereof and any shares of AT&T
Wireless Common Stock issued in the Spin-off in exchange for or redemption of
such shares of Current Wireless Tracking Stock.
"Original Purchase Price" shall mean (a) $3,162.602 for each Warrant
to purchase one share of New Tracking Stock; (b) $6.3252 for each Warrant to
purchase one share of Current Tracking Stock or one share of AT&T Wireless
Common Stock; (c) $11,750.00 for each share of New Tracking Stock; and (d)
$23.50 for each share of Current Wireless Tracking Stock or AT&T Wireless Common
Stock.
"Other Holder" shall have the meaning assigned in Section 7.2(b).
"Permitted Redemption" shall have the meaning assigned in Section
4.5.
"Person" shall mean a legal person, including any individual,
corporation, company, partnership, joint venture, association, joint-stock
company, trust, limited liability company or unincorporated association or any
other entity or organization, including a government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Piggy-Back Registration" shall have the meaning assigned in Section
7.2(a).
"Piggy-Back Request" shall have the meaning assigned in Section
7.2(a).
"Post-Redemption Sale" shall have the meaning assigned in Section
4.5.
"Post-Redemption Spin-off" shall have the meaning assigned in
Section 4.5.
"Preemptive Rights" shall have the meaning assigned in Section
8.1(a).
"Proprietary Information" shall have the meaning set forth in
Section 10.4.
"Purchase Agreement" shall have the meaning assigned in the recitals
hereto.
"Registrable Securities" shall mean (i) any shares of Current
Wireless Tracking Stock issued upon conversion of any shares of New Tracking
Stock that were issued pursuant to the Purchase Agreement or this Agreement, or
that were issued upon exercise of any Warrants, (ii) any shares of AT&T Wireless
Common Stock into which any such shares of Current Wireless Tracking Stock shall
have been converted, (iii) any shares of AT&T Wireless Common Stock issued upon
exercise of any Warrants or pursuant to DoCoMo's exercise of its preemptive
rights as set forth in Article VIII or pursuant to Section 4.3(h), (iv) any
Equity Shares (other than AT&T Wireless Common Stock) issued to DoCoMo pursuant
to the exercise of its preemptive rights as set forth in Article VIII, to the
extent that such Equity Shares are issued with registration rights or, if such
Equity Shares are issued in a registered offering, such Equity Shares will be
deemed Registrable Securities as soon as commercially practicable but in no
event later than 180 days after the effective date of the registration statement
filed with the SEC in connection with the issuance of such Equity Shares, and
(v) any AT&T Wireless Stock issued in
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respect of any of the Registrable Securities referred to in clauses (i),
(ii),(iii) or (iv) hereof in connection with stock splits, reverse stock splits,
stock dividends or distributions, or any similar recapitalization, on or after
the date hereof, in each case that are Beneficially Owned by DoCoMo or that have
been Transferred without registration under the Securities Act but in accordance
with the terms of this Agreement to a transferee entitled to the benefit of
registration rights pursuant to Section 6.1(c) of this Agreement. As to any
particular Registrable Securities, such securities shall cease to be Registrable
Securities when (i) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of by the selling shareholder in accordance
with such registration statement, (ii) such securities shall have been
distributed pursuant to Rule 144 (or any successor provision) under the
Securities Act; (iii) such securities shall have ceased to be outstanding; or
(iv) such securities may be sold in reliance on Rule 144(k) .
"Related Agreements" shall mean the Purchase Agreement, the Warrant
Agreement, that certain letter agreement, dated as of November 30, 2000,
executed and delivered among DoCoMo, AT&T and AT&T Wireless concurrently with
the execution and delivery of the Letter Agreement, that certain roaming side
letter, dated the date hereof, executed and delivered among DoCoMo, AT&T and
AT&T Wireless (and any letters or schedules referred to therein) and the
Certificate of Amendment.
"Release Conditions" shall have the meaning assigned in Section
10.2(e).
"Reseller" shall have the meaning assigned in Section 10.2(f).
"Retained Wireless Interest" shall mean, prior to the Spin-off, the
portion of the direct or indirect interests in the Wireless Group that are not
reflected by the shares of Current Wireless Tracking Stock (or by securities of
AT&T that by their terms are convertible into or exercisable or exchangeable for
shares of Current Wireless Tracking Stock).
"SEC" shall mean the United States Securities and Exchange
Commission.
"Securities Act" shall mean the Securities Act of 1933, and any
similar or successor federal statute, and the rules and regulations promulgated
thereunder, all as amended, and as the same may be in effect from time to time.
"Separation Agreements" shall mean the draft agreements or term
sheets relating to the Spin-off and the separation of the Wireless Group from
AT&T and the schedules related thereto other than those that collectively are
not material to AT&T Wireless or the Wireless Group, in each case in the
respective forms annexed to the Letter Agreement (and listed in Exhibit B
hereto), in all cases as amended or revised to the extent not prohibited by this
Agreement.
"Sold Businesses" shall have the meaning assigned in Section 4.5.
"SpinCo" shall have the meaning assigned in Section 4.5.
"SpinCo Warrant Number" shall have the meaning assigned in Section
4.5.
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"Spin-off" shall mean the spin-off of AT&T Wireless in accordance
with the Separation Agreements. The Spin-off shall be deemed to have been
consummated following completion of the exchange of AT&T Wireless Common Stock
for Current Wireless Tracking Stock and the distribution of the remaining shares
of AT&T Wireless Common Stock to holders of common stock of AT&T. For all
purposes of this Agreement, the Spin-off shall not be a "transaction
contemplated by this Agreement."
"Standstill Affiliates" shall mean each of (i) DoCoMo, (ii) each
Controlled Subsidiary of DoCoMo and (iii) when acting on behalf of DoCoMo or any
of its Controlled Subsidiaries, any officer, director, employee or agent of
DoCoMo or any such Controlled Subsidiary of DoCoMo.
"Subsidiary" means, with respect to any Person, any other Person
more than fifty percent (50%) of the shares of the voting stock or other voting
interests of which are owned or controlled, or the ability to select or elect
more than fifty percent (50%) of the directors or similar managers is held,
directly or indirectly, by such first Person or one or more of its Subsidiaries
or by such first Person and one or more of its Subsidiaries; provided, however,
that for so long as At Home or Liberty Media, as the case may be, has any public
stockholders (directly, or through a tracking stock or similar concept), At Home
and Liberty Media, as the case may be, and their respective Subsidiaries shall
not be treated as or deemed to be Subsidiaries of AT&T or of any of AT&T's
Subsidiaries or Affiliates for purposes hereof. A Subsidiary that is directly or
indirectly wholly owned by another Person except for directors' qualifying
shares shall be deemed wholly owned for the purposes of this Agreement.
"3G" shall mean third generation mobile communications systems that
are, or are based on technology that is, defined as IMT-2000 by the
International Telecommunications Union.
"Technology Default Exercise Notice" shall have the meaning assigned
in Section 4.3(b).
"Technology Default Repurchase Price" shall have the meaning
assigned in Section 4.3(c).
"Technology Default Right" shall have the meaning assigned in
Section 4.3(a).
"Tolling Period" shall have the meaning assigned in Section 3.1(d).
"Transfer" shall mean any sale (including forward sale), transfer,
or other disposition to any Person, including pursuant to any redemption, the No
Spin-off Right or the Technology Default Right, and including Transfers
resulting from the exercise of any remedy by any Person to which the relevant
securities have been pledged.
"Treasury Method" shall mean treating options and warrants as they
would be treated under the "treasury stock method" of calculating diluted
earnings per share under Statement of Financial Accounting Standards No. 128 as
in effect as of the date hereof.
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"Ultimate Parent" shall mean Nippon Telegraph and Telephone
Corporation ("NTT") or any Person (other than any government or political
subdivision or agency or instrumentality thereof) of which NTT is a Subsidiary
and that is not itself a Subsidiary of any other Person (other than any
government or political subdivision or agency or instrumentality thereof).
"Underlying Stock" shall have the meaning set forth in the Warrant
Agreement.
"WAP-NG" shall mean wireless access protocol -- next generation.
"Warrant Agreement" shall mean the Warrant Agreement with respect to
the issuance of the Warrants in the form attached to the Purchase Agreement as
Exhibit B.
"Warrant Percentage" shall have the meaning assigned in Section 4.5.
"Warrants" shall have the meaning assigned in the Purchase
Agreement.
"W-CDMA" shall mean the CDMA-based radio access technology defined
and specified in the Third Generation Partnership Project for IMT-2000 systems,
specifications of which may be modified from time to time by the Third
Generation Partnership Project.
"Wireless Group" has the meaning assigned to it in the Certificate
of Incorporation of AT&T, as amended.
"Wireless Group Allocation Fraction" has the meaning assigned to
such term in the Certificate of Incorporation of AT&T, as amended, as in effect
on November 30, 2000.
"Wireless Operator" shall have the meaning assigned in Section
3.3(a).
"WML" shall mean Wireless Markup Language.
"xHTML" shall mean Extensible HyperText Markup Language.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
Section 2.1 Representations and Warranties of AT&T. AT&T represents
and warrants to DoCoMo as of the date hereof as follows:
(a) AT&T has been duly incorporated and is validly existing in good
standing under the laws of the State of New York, and has all requisite
power and authority to execute and deliver this Agreement and to perform
its obligations hereunder and to consummate the transactions
contemplated hereby.
(b) This Agreement and all transactions contemplated hereby have
been duly and validly authorized by all necessary action on the part of
AT&T.
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(c) This Agreement has been duly executed and delivered by AT&T and,
assuming due authorization and valid execution and delivery by DoCoMo,
is a valid and legally binding obligation of AT&T, enforceable against
it in accordance with its terms subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors' rights.
Section 2.2 Representations and Warranties of AT&T Wireless. AT&T
Wireless represents and warrants to DoCoMo as of the date hereof as follows:
(a) AT&T Wireless has been duly incorporated and is validly existing
in good standing under the laws of the State of Delaware, and has all
requisite power and authority to execute and deliver this Agreement and
to perform its obligations hereunder and to consummate the transactions
contemplated hereby.
(b) This Agreement and all transactions contemplated hereby have
been duly and validly authorized by all necessary action on the part of
AT&T Wireless.
(c) This Agreement has been duly executed and delivered by AT&T
Wireless and, assuming due authorization and valid execution and
delivery by DoCoMo, is a valid and legally binding obligation of AT&T
Wireless, enforceable against it in accordance with its terms subject to
bankruptcy, insolvency, fraudulent transfer, reorganization, moratorium
and similar laws of general applicability relating to or affecting
creditors' rights.
Section 2.3 Representations and Warranties of DoCoMo and each
Designee. DoCoMo and each Designee represents and warrants to AT&T and AT&T
Wireless as of the date hereof or, with respect to any Designee that becomes
such after the date hereof, as of the date that such Designee becomes such, as
follows:
(a) DoCoMo and each Designee has been duly incorporated and is
validly existing and in good standing under the laws of the jurisdiction
of its organization and has all requisite power and authority to execute
and deliver this Agreement and to perform its obligations hereunder and
to consummate the transactions contemplated hereby.
(b) This Agreement and all transactions contemplated hereby have
been duly and validly authorized by all necessary action on the part of
DoCoMo and each Designee.
(c) This Agreement has been duly executed and delivered by DoCoMo
and each Designee and, assuming due authorization and valid execution
and delivery by AT&T and AT&T Wireless, is a valid and legally binding
obligation of DoCoMo and each Designee, enforceable against it in
accordance with its terms subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights.
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ARTICLE III
GOVERNANCE AND STANDSTILL PROVISIONS
Section 3.1 Board of Directors. (a) At the Closing or as soon as
reasonably practicable thereafter (but in no event later than the first meeting
of the AT&T Board held after the Closing), (i) the number of directors on the
AT&T Board will be increased by one and (ii) the AT&T Board will elect to the
AT&T Board a senior officer of DoCoMo to be designated in writing to AT&T at
least 10 days prior to the Closing Date who is reasonably acceptable to AT&T
(the "DoCoMo AT&T Nominee"). If no such person reasonably acceptable to AT&T is
identified at least 10 days prior to the Closing Date, then the AT&T Board shall
not be obligated to elect such person until the tenth day following the date a
reasonably acceptable senior officer of DoCoMo is identified in writing to AT&T.
Until the earlier of (x) the consummation of the Spin-off or (y) an Investor
Rights Termination Event, at any annual or special meeting of shareholders of
AT&T at which Directors are to be elected (and at which the seat held by the
DoCoMo AT&T Nominee is subject to election), AT&T shall renominate the DoCoMo
AT&T Nominee, or nominate another senior officer of DoCoMo designated by DoCoMo
who is reasonably acceptable to AT&T, to be elected to the AT&T Board, and shall
use its reasonable efforts to cause such person to be elected to such position.
DoCoMo shall notify AT&T of its proposed nominee to the AT&T Board, in writing,
no later than 30 days prior to the first anniversary of the mailing of the proxy
statement related to the previous year's annual meeting of stockholders,
together with all information concerning such nominee reasonably requested by
AT&T, so that AT&T may determine whether such nominee is reasonably acceptable
to AT&T and so that AT&T can comply with applicable disclosure rules (the
"Nominee Disclosure Information"); provided that in the event DoCoMo fails to
provide any such notice, the DoCoMo AT&T Nominee shall be the person then
serving in such capacity hereunder as long as DoCoMo provides the Nominee
Disclosure Information to AT&T promptly upon request by AT&T. Concurrently with
electing such person to the AT&T Board pursuant to the first two sentences of
this Section 3.1(a), the AT&T Board will elect the DoCoMo AT&T Nominee to the
AT&T Wireless Capital Stock Committee, and, so long as DoCoMo has the right
pursuant to this Section 3.1(a) to have its nominee nominated for election to
the AT&T Board, the DoCoMo AT&T Nominee will be a member of the AT&T Wireless
Capital Stock Committee. In the event of the death, disability, resignation or
removal of the DoCoMo AT&T Nominee, the AT&T Board will promptly elect to the
AT&T Board a senior officer of DoCoMo designated by DoCoMo who is reasonably
acceptable to AT&T to fill the resulting vacancy, which such individual shall
then be deemed a DoCoMo AT&T Nominee for all purposes hereunder. All obligations
of AT&T pursuant to this Section 3.1(a) shall terminate, and DoCoMo shall cause
the DoCoMo AT&T Nominee to resign from the AT&T Board and all committees thereof
(including the AT&T Wireless Capital Stock Committee) immediately upon the
earlier of (x) the consummation of the Spin-off and (y) the occurrence of an
Investor Rights Termination Event. The obligations of AT&T pursuant to this
Section 3.1(a), and the obligations of AT&T Wireless pursuant to Sections 3.1(b)
and (c), shall also be subject to limitation or termination as otherwise
expressly set forth herein, including pursuant to Sections 3.6(c), 4.3(d) and
10.2(e).
(b) Following the consummation of the Spin-off, for so long as an
Investor Rights Termination Event has not occurred, DoCoMo will be entitled to
designate a number of nominees (the "DoCoMo AT&T Wireless Nominees") to the AT&T
Wireless Board in
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proportion to DoCoMo's Economic Interest Percentage in AT&T Wireless (such
number of nominees to be rounded up in the case of a fraction of .5 or greater
or down in the case of a fraction less than .5 to the nearest whole number),
without reference to any Economic Interests acquired after the Closing other
than by the exercise of Preemptive Rights or upon exercise of the Warrants (or
acquired in exchange for such Economic Interests in connection with the
Spin-off); provided that, unless an Investor Rights Termination Event has
occurred, in no event shall the number of DoCoMo AT&T Wireless Nominees be less
than one. Each DoCoMo AT&T Wireless Nominee shall be a senior officer of DoCoMo
and be reasonably acceptable to AT&T Wireless. AT&T and AT&T Wireless agree to
cause the AT&T Wireless Board as of immediately prior to the consummation of the
Spin-off to be classified into three classes. AT&T and AT&T Wireless agree that
the initial DoCoMo AT&T Wireless Nominees shall be staggered among such classes,
provided that in the event there are fewer than three DoCoMo AT&T Wireless
Nominees, AT&T and AT&T Wireless agree that the initial DoCoMo AT&T Wireless
Nominees (in the event there are two) will be appointed to the classes the terms
of which will expire at the second and third annual meeting of shareholders
following the consummation of the Spin-off, or that the initial DoCoMo AT&T
Wireless Nominee (in the event there is only one) will be appointed to the class
the term of which will expire at the third annual meeting of shareholders
following the consummation of the Spin-off, and in any event that as of the
consummation of the Spin-off the DoCoMo AT&T Wireless Nominees shall be members
of the AT&T Wireless Board.
(c) Until an Investor Rights Termination Event has occurred, at any
annual or special meeting of shareholders at which Directors of AT&T Wireless
are to be elected (and after which, if a DoCoMo AT&T Wireless Nominee were not
elected, there would not exist the number of DoCoMo AT&T Wireless Nominees to
which DoCoMo is then entitled pursuant to Section 3.1(b)), AT&T Wireless shall
nominate another senior officer of DoCoMo designated by DoCoMo who is reasonably
acceptable to AT&T Wireless, to be elected to the AT&T Wireless Board, and shall
use its reasonable efforts to cause such person to be elected to such position.
DoCoMo shall notify AT&T Wireless of each proposed nominee to the AT&T Wireless
Board, in writing, a reasonable time in advance of the mailing of any proxy
statement, information statement or registration statement in which any Board
nominee or Board member of AT&T Wireless would be named (which in the event of
any proxy statement relating to an annual meeting of stockholders of AT&T
Wireless, other than the first such annual meeting, shall be no later than 30
days prior to the first anniversary of the mailing of the proxy statement
related to the previous year's annual meeting of stockholders), together with
all the Nominee Disclosure Information; provided that in the event DoCoMo fails
to provide any such notice, the DoCoMo AT&T Wireless Nominees shall be the
persons, if any, then serving in such capacity hereunder as long as DoCoMo
provides the Nominee Disclosure Information to AT&T promptly upon request by
AT&T. In the event of the death, disability, resignation or removal of any
DoCoMo AT&T Wireless Nominee at a time when DoCoMo is otherwise entitled to
nominate a director to fill such vacancy, the AT&T Wireless Board will promptly
elect to the AT&T Wireless Board a senior officer of DoCoMo designated by DoCoMo
who is reasonably acceptable to AT&T Wireless to fill the resulting vacancy,
which such individual shall then be deemed a DoCoMo AT&T Wireless Nominee for
all purposes hereunder. All obligations of AT&T Wireless pursuant to this
Section 3.1(c) shall terminate, and DoCoMo shall cause all DoCoMo AT&T Wireless
Nominees to resign from the AT&T Wireless Board, immediately upon the occurrence
of an Investor Rights Termination Event. In addition, DoCoMo will cause any
excess DoCoMo
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AT&T Wireless Nominees to resign at any time that there exist more DoCoMo AT&T
Wireless Nominees than DoCoMo is entitled to hereunder. DoCoMo will cause such
resignation to occur within 60 days, in the case of a reduction in the number of
DoCoMo AT&T Wireless Nominees to which it is entitled, or within 10 Business
Days in the case of a loss of its right to nominate any Board nominees. In the
case of a loss of the right to nominate any Board nominees, no DoCoMo AT&T
Wireless Nominees will vote or exercise any other rights or powers of office
during the period pending resignation. In the event that at any time prior to
the occurrence of an Investor Rights Termination Event, DoCoMo becomes entitled
pursuant to Section 3.1(b) as a result of the exercise of its Preemptive Rights
to designate a greater number of DoCoMo AT&T Wireless Nominees than it has at
such time, AT&T Wireless agrees to use its reasonable efforts to cause to be
appointed to the AT&T Wireless Board in accordance with the last sentence of
this paragraph a number of new DoCoMo AT&T Wireless Nominees such that the
number of existing DoCoMo AT&T Wireless Nominees or the AT&T Wireless Board
equals the number to which DoCoMo is entitled at that time pursuant to Section
3.1(b), such appointment or appointments to be made not later than the first
meeting of the AT&T Wireless Board held at least 10 Business Days subsequent to
the date AT&T Wireless receives notification of the identity of such new DoCoMo
AT&T Wireless Nominee and the Nominee Disclosure Information with respect to
such person. Any such new DoCoMo AT&T Wireless Nominees shall be senior officers
of DoCoMo reasonably acceptable to AT&T Wireless.
(d) An "Investor Rights Termination Event" shall be deemed to have
occurred if, for any period of 60 consecutive days, DoCoMo has an Economic
Interest Percentage in AT&T Wireless that is less than 10%; provided, however,
that so long as DoCoMo has not Transferred from and after the Closing Date in
the aggregate (other than to its direct or indirect wholly owned Subsidiaries
that at the time of determination remain direct or indirect wholly owned
Subsidiaries) in excess of 304,692 Original Investment Shares (with each share
of Current Wireless Tracking Stock or AT&T Wireless Common Stock included within
the Original Investment Shares being counted as 1/500 of a share, appropriately
adjusted in the event of any anti-dilution adjustments to the conversion rights
of the New Tracking Stock or in the event the Spin-off exchange ratio of AT&T
Wireless Common Stock for Current Wireless Tracking Stock is other than
one-for-one), an Investor Rights Termination Event will be deemed to occur only
if for a period of 60 consecutive days DoCoMo has an Economic Interest
Percentage in AT&T Wireless that is less than 8%. The 60 consecutive day periods
referred to in this definition shall be tolled beginning on the fifty-ninth
consecutive day, for a period (the "Tolling Period") of not more than an
additional six months, if (1) DoCoMo has exercised Preemptive Rights hereunder
prior to the thirtieth consecutive day and such exercise would result in DoCoMo
having an Economic Interest Percentage sufficient to avoid an Investor Rights
Termination Event, (2) DoCoMo has not completed the acquisition of securities
pursuant to such exercise of Preemptive Rights as of such fifty-ninth day solely
because a required regulatory approval has not been received or an applicable
regulatory waiting period has not expired or terminated, and (3) DoCoMo has used
and continues in good faith to use all reasonable efforts to complete the
acquisition of securities pursuant to such exercise of Preemptive Rights,
including seeking such regulatory approvals or expirations or terminations of
applicable waiting periods; provided that such period shall cease to be tolled
and shall resume running as if from the fifty-ninth consecutive day immediately
upon any of (w) DoCoMo failing or ceasing to act in accordance with clause (3)
above, (x) any application for a required regulatory approval being denied and
such denial becoming final and nonappealable, (y) any event occurring as a
result of which
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clause (2) above is no longer true and correct, or (z) DoCoMo Transfering any
securities, or failing to exercise any subsequent Preemptive Rights, such that
completion of the exercise of Preemptive Rights with respect to which the
Tolling Period applies would not result in DoCoMo having an Economic Interest
Percentage sufficient to avoid an Investor Rights Termination Event.
Section 3.2 Pre-Spin-off Governance Rights. (a) Subject to Sections
3.2(b) and (c) hereof, prior to the consummation of the Spin-off, AT&T will not,
and will not permit its Subsidiaries to, take any of the following actions
without the prior written consent of DoCoMo:
(i) a sale of all or substantially all the assets of the
Wireless Group taken as a whole;
(ii) a merger, consolidation or similar business combination
involving all or substantially all of the business of the
Wireless Group, other than any such transaction in which the
holders of the Economic Interests in the Wireless Group as
of immediately prior to the consummation of the first of
such transactions to occur after November 30, 2000 continue
to hold, directly or indirectly, at least two-thirds of such
Economic Interests following each of such transactions;
(iii) the acquisition (including by merger or other similar
transaction) of any business or assets by the Wireless Group
or by AT&T on behalf of or that are to be contributed to the
Wireless Group, provided that AT&T or the Wireless Group may
make such acquisitions to the extent that the consideration
paid by AT&T or the Wireless Group with respect to all such
acquisitions made after November 30, 2000 does not exceed
$17 billion (other than acquisitions of spectrum, which may
be made without regard to and without counting against such
dollar limitation);
(iv) any further issuance of Economic Interests in or rights to
the Wireless Group (including the issuance of additional
shares of New Tracking Stock or Current Wireless Tracking
Stock but excluding issuances of shares of Economic
Interests pursuant to the Purchase Agreement or upon the
exercise of Preemptive Rights), except: (A) for issuances of
Economic Interests in the Wireless Group that do not, in the
aggregate for all such issuances made after November 30,
2000, exceed 15% of the market capitalization (including the
value of AT&T's Retained Wireless Interest) of the Wireless
Group as of November 30, 2000; (B) with respect to the
issuance to officers, employees or directors of Current
Wireless Tracking Stock or options to acquire shares of
Current Wireless Tracking Stock (or options exercisable
after the Spin-off to acquire AT&T Wireless Common Stock) in
the ordinary course of business consistent with past
practice or in connection with the Spin-off; (C) issuances
of Current Wireless Tracking Stock upon exercise of such
options; (D) issuances of Current Wireless Tracking Stock in
connection with acquisitions or merger transactions not
prohibited by clauses (ii) and (iii) hereof; (E) issuances
of New Tracking
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Stock upon exercise of the Warrants or of Current Wireless
Tracking Stock upon conversion of shares of New Tracking
Stock or upon exercise of the Warrants; and (F) the issuance
of shares of Current Wireless Tracking Stock that reflects
the disposition of any portion of AT&T's Retained Wireless
Interest, including without limitation in the publicly
announced proposed exchange offer of Current Wireless
Tracking Stock for common stock of AT&T (the "Exchange
Offer") to be effected prior to the Spin-off (provided that
in any such disposition to a party unaffiliated with AT&T
that is not in connection with the Spin-off or Exchange
Offer, no Person or group of related Persons may acquire any
governance or board participation rights in excess of the
normal rights of ownership of Current Wireless Tracking
Stock); provided that the aggregate issuances after November
30, 2000 permitted in clauses (A) through (D) of this clause
(iv) shall not result in the holders of the Economic
Interests in the Wireless Group immediately after giving
effect to the Investment ceasing to hold at least two-thirds
of such Economic Interests following such issuances;
(v) the payment of any cash dividends to holders of the Current
Wireless Tracking Stock, any repurchase of Current Wireless
Tracking Stock (other than repurchases (A) to offset option
exercises by employees, (B) repurchases which are not
material in amount in connection with employee settlements
or similar matters and (C) other repurchases for
consideration not in excess of $5 million in the aggregate)
or any repurchase of AT&T's Retained Wireless Interest (it
being understood that the allocation of a portion of the
proceeds of the Investment to AT&T and the resulting
adjustment of the Wireless Group Allocation Fraction to
reduce AT&T's Retained Wireless Interest shall not give rise
to a veto right under this provision); and
(vi) any (A) amendment to the certificate of incorporation
(including with respect to the definition of the "Wireless
Group" or the "Wireless Group Allocation Fraction" therein)
or by-laws of AT&T to the extent such amendments would have
an adverse effect on the rights of the holders of the New
Tracking Stock (it being understood that any proposed
amendment to the certificate of incorporation of AT&T to
reduce the required vote for a merger or for a sale or other
disposition of substantially all the assets from the
currently required two-thirds vote to a simple majority vote
will not violate this provision), (B) changes to the
Separation Agreements that would, in the aggregate, have a
material adverse effect on the Wireless Group, or (C)
material new agreements between AT&T or its Subsidiaries
(other than AT&T Wireless and its Subsidiaries), on the one
hand, and the Wireless Group, on the other hand, other than
those that are on arm's-length terms comparable to those
which the Wireless Group would enter into with an
unaffiliated third party.
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(b) The foregoing notwithstanding, DoCoMo will not have any right to
veto (i) the Spin-off, (ii) any redemption of the New Tracking Stock pursuant to
the terms of the New Tracking Stock or (iii) any redemption of the Current
Wireless Tracking Stock.
(c) The foregoing notwithstanding, DoCoMo will cease to have any
rights, and AT&T and AT&T Wireless will cease to have any obligations, under
this Section 3.2 upon the occurrence of an Investor Rights Termination Event.
The rights of DoCoMo under this Section 3.2 shall also be subject to limitation
or termination as otherwise expressly set forth herein, including pursuant to
Section 4.3(d).
Section 3.3 Post-Spin-off Governance Rights. (a) Following the
Spin-off, AT&T Wireless will not take any of the following actions without
DoCoMo's prior written consent:
(i) change the scope of its business such that the Wireless
Group's current businesses (including those businesses that
are part of the Wireless Group's current business plan and
including any natural evolution of such current businesses)
taken as a whole no longer constitute AT&T Wireless's
primary business; or
(ii) enter into a strategic alliance with another Wireless
Operator that would result in such Wireless Operator owning
more than 15% but less than 50% of the Economic Interests in
AT&T Wireless (it being understood that a merger with a
third party that results in a Wireless Operator owning more
than 15% but less than 50% of the resulting entity by reason
of such Wireless Operator's prior shareholdings in such
third party shall not be deemed to violate this clause (ii)
unless such merger is undertaken solely to effect such a
strategic alliance with such Wireless Operator).
For purposes of the foregoing, "Wireless Operator" shall mean any
Person that owns or operates a Mobile Telecommunications Infrastructure or that
is a Reseller.
(b) DoCoMo will cease to be entitled to the foregoing veto rights
upon the occurrence of an Investor Rights Termination Event. The foregoing
rights shall also be subject to limitation or termination as otherwise expressly
set forth herein, including pursuant to Section 4.3(d).
Section 3.4 Senior Leadership Team. From and after the Closing, AT&T
Wireless hereby agrees that DoCoMo will be entitled to select one senior
executive of DoCoMo reasonably acceptable to AT&T Wireless to be a member of
AT&T Wireless's Senior Leadership Team and to participate in its meetings, which
will be scheduled regularly and no less frequently than monthly. AT&T Wireless
hereby represents and warrants to DoCoMo that AT&T Wireless's Senior Leadership
Team is the current body (other than the AT&T Board and its committees) in which
principal decisions with respect to the Wireless Group are discussed by the
principal decision-makers of AT&T Wireless. The members of the Senior Leadership
Team as of November 30, 2000 are set forth in Schedule 3.4 hereto. AT&T Wireless
hereby agrees to give DoCoMo's designee at least three Business Days' notice of
meetings of its Senior
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Leadership Team, to the extent practicable, and in any event will use its
reasonable efforts to provide such individual at least as much notice of
meetings as is given to the other members of the Senior Leadership Team.
DoCoMo's designee may attend such meetings by telephone and, upon request, will
be given a briefing by another member of the Senior Leadership Team with respect
to any meeting that such individual does not attend. AT&T Wireless hereby agrees
that the senior executive designated by DoCoMo will also be a member of any
similar AT&T Wireless body that may be formed to address matters of similar
importance to the matters currently considered by AT&T Wireless's Senior
Leadership Team. AT&T Wireless's obligations and DoCoMo's rights under this
Section 3.4 shall terminate on the earlier of (a) consummation of the Spin-off
or (b) the occurrence of an Investor Rights Termination Event. Such obligations
and rights shall also be subject to limitation or termination as otherwise
expressly set forth herein, including pursuant to Sections 3.6(c), 4.3(d) and
10.2(e).
Section 3.5 Management Positions. (a) AT&T Wireless agrees that,
both before and after the Spin-off, DoCoMo will have the right to appoint at
least two and no more than five of its employees as employees of AT&T Wireless,
with such titles as "Manager-Finance" and/or "Director of Technology" of AT&T
Wireless (and such other titles as may be agreed with AT&T Wireless), and such
employees will have powers, obligations and responsibilities consistent with
such titles. Such employees will report directly to the Chief Financial Officer,
Chief Technology Officer or, with respect to other titles, to other appropriate
officers of AT&T Wireless. DoCoMo's nominees for such appointments, and the
continued employment by AT&T Wireless of such individuals, will be subject to
the reasonable approval of AT&T Wireless. So long as DoCoMo has the right
pursuant to this Section 3.5(a) to have the right to appoint employees, in the
event of the death, disability, resignation or termination of any such employee,
DoCoMo shall be entitled to appoint a replacement, subject to the reasonable
approval of AT&T Wireless.
(b) DoCoMo will cease to have any rights under, and AT&T Wireless
will cease to have any obligations under, this Section 3.5 upon the occurrence
of an Investor Rights Termination Event. DoCoMo will cause the resignation of
its employees appointed pursuant to Section 3.5(a) to occur within 10 Business
Days following the loss of such rights, and no DoCoMo appointee will vote or
exercise any other rights or powers of office during such 10-Business Day
period. Such rights and obligations shall also be subject to limitation or
termination as otherwise expressly set forth herein, including pursuant to
Sections 3.6(c) and 4.3(d).
Section 3.6 Standstill Restrictions. (a) Subject to Section 3.7,
prior to the fifth anniversary of the Closing Date, DoCoMo shall not, and shall
not permit any of its Standstill Affiliates to, in any manner, whether publicly
or otherwise, directly or indirectly, without the prior written consent of AT&T
(to the extent related to AT&T or its securities, Subsidiaries or assets) or
AT&T Wireless (to the extent related to AT&T Wireless or its securities,
Subsidiaries or assets):
(i) acquire, agree to acquire or make any public proposal to
acquire, directly or indirectly, Beneficial Ownership of any
voting securities or assets of AT&T or AT&T Wireless or the
Subsidiaries of either, except (A) pursuant to the exercise
of Preemptive Rights pursuant to Article VIII, (B)
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the acquisition of shares of Current Wireless Tracking Stock
upon conversion of shares of New Tracking Stock in
accordance with the terms of the New Tracking Stock, (C) the
acquisition of shares of New Tracking Stock, Current
Wireless Tracking Stock or AT&T Wireless Common Stock upon
exercise of Warrants in accordance with the terms of the
Warrants, (D) the acquisition of shares of AT&T Wireless
Common Stock in exchange for shares of Current Wireless
Tracking Stock pursuant to the Spin-off (provided that such
shares of Current Wireless Tracking Stock shall have been
acquired in accordance with the foregoing), (E) the
acquisition of securities by DoCoMo or any of its wholly
owned subsidiaries (who agree to become Designees as a
result of such acquisition) from DoCoMo or any of its
Designees in accordance with and to the extent permitted by
Section 6.1(a) hereof, (F) Beneficial Ownership resulting
from the acquisition of interests in any unrelated Person
that has Beneficial Ownership of shares of Current Wireless
Tracking Stock or AT&T Wireless Common Stock, provided, in
the case of this clause (F) that (1) the acquisition of
Beneficial Ownership of Current Wireless Tracking Stock or
AT&T Wireless Common Stock was not an important purpose of
the acquisition of interest in such unrelated Person, (2)
DoCoMo or the relevant Standstill Affiliate divests, or
causes the unrelated Person to divest, any such shares of
Current Wireless Tracking Stock or AT&T Wireless Common
Stock as promptly as commercially practicable and, until
such divestiture, does not, and causes such unrelated Person
not to, vote any such shares other than in accordance with
this Agreement, and (3) any such shares of Current Wireless
Tracking Stock or AT&T Wireless Common Stock shall not be
counted in any calculation of DoCoMo's Economic Interest
Percentage, and (G) Beneficial Ownership of Current Wireless
Tracking Stock or AT&T Wireless Common Stock arising from
equity compensation issued to DoCoMo employees seconded to
the Wireless Group or AT&T Wireless or its Subsidiaries,
provided, in the case of this clause (G) that (1) if DoCoMo
or any of its Standstill Affiliates comes to have direct
ownership of any such shares issued to any such seconded
employee (including upon exercise of any option), DoCoMo or
the relevant Standstill Affiliate shall divest any such
shares as promptly as practicable and, until such
divestiture, shall not, and shall cause such employee not
to, vote any such shares other than in accordance with this
Agreement, and (2) any such shares of Current Wireless
Tracking Stock or AT&T Wireless Common Stock shall not be
counted in any calculation of DoCoMo's Economic Interest
Percentage;
(ii) enter into or publicly propose to enter into, directly or
indirectly, any merger or other business combination or
similar transaction or change in control transaction
involving AT&T or AT&T Wireless, or the Subsidiaries of
either;
(iii) make, or in any way participate, directly or indirectly, in
any "solicitation" of "proxies" (as such terms are used in
the proxy rules of the SEC) to vote,
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or seek to advise or influence any Person with respect to
the voting of, any securities of AT&T or AT&T Wireless, or
the Subsidiaries of either;
(iv) call, or seek to call, a meeting of the shareholders of AT&T
or AT&T Wireless or initiate any shareholder proposal for
action by shareholders of AT&T or AT&T Wireless;
(v) bring any action or otherwise act to contest the validity of
any of the provisions of this Section 3.6 or seek a release
of the restrictions contained in this Section 3.6, in each
case in any manner that would require or lead to public
disclosure thereof;
(vi) form, join or in any way participate in a "group" (within
the meaning of Section 13(d)(3) of the Exchange Act) that,
with respect to any securities of AT&T or AT&T Wireless or
any Subsidiary of either, would be required under Section
13(d) of the Exchange Act and the rules and regulations
thereunder to file a Statement on Schedule 13D with the SEC
as a "person" (within the meaning of Section 13(d)(3) of the
Exchange Act);
(vii) seek representation on the Board of AT&T or AT&T Wireless,
other than any seat on the Board with respect to which
DoCoMo is then entitled to make a nomination pursuant to
Section 3.1 of this Agreement, or seek the removal of any
Directors (other than the DoCoMo AT&T Nominee or the DoCoMo
AT&T Wireless Nominees) from either such board or seek a
change in size or composition of either such board
(including, without limitation, by voting for any directors
not nominated by the Board of AT&T or AT&T Wireless);
(viii) enter into any discussions, negotiations or arrangements
(whether written or oral) with any other Person with respect
to any of the foregoing (other than action taken by a
Director in his or her capacity as a member of the Board of
AT&T or AT&T Wireless or taken by an employee of AT&T
Wireless in the authorized course of such employment);
(ix) disclose any intention, plan or arrangement inconsistent
with the foregoing;
(x) take, or solicit, or propose to or agree with any other
Person to take, any actions designed to obtain, affect or
change the control of the Board, senior executive management
or voting equity of AT&T or AT&T Wireless (other than action
taken by a Director in his or her capacity as a member of
the Board of AT&T or AT&T Wireless and, with respect to the
senior executive management of AT&T Wireless, as expressly
contemplated hereunder); or
(xi) advise, assist or encourage any other Persons in connection
with any of the foregoing.
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(b) Prior to the fifth anniversary of the Closing Date, without
limiting Section 3.6(a), in the event DoCoMo's Ultimate Parent or any of its
Ultimate Parent's Subsidiaries (other than DoCoMo and its Controlled
Subsidiaries), or, when acting on behalf of the Ultimate Parent or such
Subsidiaries, any Affiliate thereof, takes any action of the types referred to
in any of clauses (i) -- (xi) of Section 3.6(a) hereof, then, without limiting
any of the obligations of DoCoMo and its Controlled Subsidiaries under Section
3.6(a) hereof, DoCoMo and its Controlled Subsidiaries shall not:
(i) with respect to any matter proposed or supported by DoCoMo's
Ultimate Parent (or its Subsidiaries or Affiliates) or any
vote of AT&T's or AT&T Wireless's stockholders related to or
occurring as a result of any such action by DoCoMo's
Ultimate Parent (or its Subsidiaries or Affiliates), vote
any of their securities of AT&T or AT&T Wireless other than,
at DoCoMo's election, either (A) as directed by the Board or
(B) in proportion to the votes cast by the stockholders of
AT&T or AT&T Wireless who are not Affiliates of DoCoMo or of
DoCoMo's Ultimate Parent, and
(ii) with respect to any tender or exchange offer or other offer
to purchase securities proposed or supported by DoCoMo's
Ultimate Parent (or its Affiliates or Subsidiaries), tender,
offer, sell or transfer any of their securities of AT&T or
AT&T Wireless to the Person making such offer without the
prior written consent of the Board; provided, however, that
DoCoMo and its Controlled Subsidiaries may tender their
shares of Current Wireless Tracking Stock or AT&T Wireless
Common Stock into such a tender offer after (but only after)
such time as all material conditions to such offer
(including any financing condition and any condition with
respect to removal of AT&T Wireless's rights plan or any
other takeover protections) that are capable of being
satisfied prior to expiration of the offer have been
satisfied or irrevocably waived by the offeror; provided,
further, that DoCoMo and its Controlled Subsidiaries shall
not, prior to such time, announce or disclose their intent
to tender their shares into such offer following
satisfaction or waiver of such conditions.
(c) From and after the fifth anniversary of the Closing Date, and
for so long as DoCoMo has the right to nominate a Director pursuant to Section
3.1 hereof, DoCoMo shall not and shall not permit any of its Standstill
Affiliates to, take any action described in either of Section 3.6(a) or Section
3.6(b) hereof, provided, however, that DoCoMo shall be released from the
restrictions of and its obligations under this Section 3.6(c) on the 91st day
after both of the following events have occurred: (i) all DoCoMo AT&T Nominees
and all DoCoMo AT&T Wireless Nominees shall have resigned and DoCoMo shall not
have replaced any of them with new representatives or nominees, and (ii) all
other DoCoMo representatives or designees appointed to the management or any
governance body or committee of AT&T Wireless (including under Sections 3.1,
3.4, 3.5 and 5.4 hereunder) shall have resigned and shall not have been replaced
with new DoCoMo representatives or designees. Immediately upon the resignation
of all of DoCoMo's representatives or designees appointed to the management or
any
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governance body or committee of AT&T Wireless (including under Sections 3.1,
3.4, 3.5 and 5.4 hereunder) as contemplated by the foregoing clause (ii), (A)
DoCoMo shall be deemed to have irrevocably waived its rights to Board
representation and to designate any representatives or designees to the
management or any governance body or committee hereunder (including under
Sections 3.1, 3.4, 3.5 and 5.4 hereunder), but shall not be deemed to have
waived any rights it may have as a result of being a shareholder of AT&T
Wireless and (B) AT&T Wireless may take such action with respect to any other
employees of, or persons providing service to, AT&T Wireless (including the MMS)
in its sole discretion, including terminating or sequestering or separating such
employees, without regard to the fact that any such persons may have been
appointed or nominated by DoCoMo. The foregoing notwithstanding, in the event
the resignations contemplated by foregoing clauses (i) and (ii) occur
concurrently with the delivery by DoCoMo to AT&T or AT&T Wireless, as the case
may be, of a notice to the effect that such resignations are not intended to
commence the 90-day time period for releasing DoCoMo from the restrictions of
and its obligations under this Section 3.6 and that DoCoMo intends to replace
the individuals who have resigned, then such 90-day time period will not
commence and the consequences set forth in the foregoing clauses (A) and (B)
will not apply.
(d) From and after the Spin-off, the obligations set forth above, to
the extent related to AT&T and its Subsidiaries and assets, but not to AT&T
Wireless and its Subsidiaries and assets, shall be enforceable by AT&T, and not
by AT&T Wireless.
(e) DoCoMo agrees not to provide to DoCoMo's Ultimate Parent or its
Subsidiaries (including as a result of any representation DoCoMo's Ultimate
Parent or Subsidiaries may have on the DoCoMo board or in DoCoMo management),
other than DoCoMo and its Subsidiaries, any non-public information concerning
AT&T or AT&T Wireless or any of their respective Subsidiaries or businesses
obtained by DoCoMo as a result of its Board, management or other rights under
this Agreement or any of the Related Agreements or as a result of its investment
in AT&T or AT&T Wireless; provided that DoCoMo may provide to its Ultimate
Parent such non-public information to the extent, but only to the extent, DoCoMo
and its Ultimate Parent are required to obtain such non-public information in
order to prepare such consolidated financial reports as either of them is
required to prepare under applicable law, but only so long as (i) such
non-public information is disclosed pursuant to customary confidentiality
restrictions that (A) limit dissemination of such information to those employees
and agents of DoCoMo and its Ultimate Parent having a need to know in connection
with the preparation of such consolidated financial reports, (B) prohibit public
disclosure of such non-public information and (C) prohibit inclusion of such
information in any portion of the consolidated financial reports that become
publicly disclosed, in each case prior to the time any such information is
publicly disclosed by AT&T or AT&T Wireless, as the case may be, (ii) DoCoMo
agrees to be responsible for the performance by its Ultimate Parent of the
provisions of this paragraph and otherwise to use all reasonable efforts to
prevent such non-public information from becoming disclosed or disseminated,
prior to the time any such information is publicly disclosed by AT&T or AT&T
Wireless, as the case may be, other than to those having a need to know in
connection with the preparation of such consolidated financial reports, and
(iii) DoCoMo concurrently provides to AT&T and AT&T Wireless a copy of the
information so disclosed to its Ultimate Parent and DoCoMo certifies to its
compliance with respect to the foregoing clauses (i) and (ii).
-22-
Section 3.7 Termination of the Standstill Restrictions. (a) To the
extent the restrictions on and the obligations of DoCoMo and its Standstill
Affiliates under Sections 3.6(a), (b) and (c) relate to AT&T Wireless or its
securities, Subsidiaries or assets, such restrictions and obligations shall
terminate if any of the following three events occurs:
(i) a third party unaffiliated with AT&T Wireless commences a
tender or exchange offer seeking to acquire 15% or more of
AT&T Wireless's outstanding voting securities and AT&T
Wireless does not (within 10 Business Days following such
commencement) publicly recommend that its shareholders not
accept such offer;
(ii) AT&T Wireless enters into a definitive agreement (or binding
letter of intent) with a third party (or group of related
parties) to effectuate a merger or consolidation with or
sale of all or substantially all of its assets and
properties to, any unaffiliated third party, unless
immediately following such transaction the Persons that
immediately prior to such transaction held the AT&T Wireless
Common Stock hold, directly or indirectly, at least 50% of
the equity and at least 50% of the voting power of the
entity surviving such merger or consolidation or to whom
such assets will be transferred; or
(iii) if AT&T Wireless enters into a definitive agreement (or
binding letter of intent) providing for a sale by AT&T
Wireless of AT&T Wireless securities, or a merger or
consolidation, in either case that would result in any one
Person (or group of related Persons) acquiring in excess of
35% of the voting power of AT&T Wireless outstanding after
completion of such transaction; provided that (x) if the
acquiror of the greater-than 35% block is subject to a
standstill that restricts its ability to acquire more than
its initial percentage of the voting power of AT&T Wireless
or to appoint a majority of its board of directors (and such
standstill is otherwise on substantially similar terms as
the provisions of Section 3.6 or, to the extent such other
terms are not substantially similar to the provisions of
Section 3.6, AT&T Wireless amends the provisions of Section
3.6 to make the provisions of Section 3.6 substantially
similar to such terms of the other standstill), then the
obligations set forth in Section 3.6 (as so amended, if
applicable) shall not terminate by virtue of this clause
(iii) unless and until the standstill restrictions on the
acquiror lapse or are waived, and (y) anything in this
clause (iii) notwithstanding, DoCoMo shall continue to be
subject to each provision of Section 3.6 to the extent such
provision relates to the ability of DoCoMo to support,
encourage, cooperate with, participate with or act as a
group or in concert with the greater-than-35% acquiror with
respect to the securities of AT&T Wireless or AT&T
Wireless's Board or management.
(b) To the extent the restrictions on and the obligations of DoCoMo
and its Standstill Affiliates under Sections 3.6(a), (b) and (c) relate to AT&T
or its securities,
-23-
Subsidiaries or assets, such restrictions and obligations shall terminate on the
second anniversary of the consummation of the Spin-off.
(c) To the extent the restrictions on and the obligations of DoCoMo
and its Standstill Affiliates under Sections 3.6(a), (b) and (c) relate to AT&T
or its securities, Subsidiaries or assets, then such restrictions and
obligations shall terminate if any of the following three events occurs, but
only if at such time the Spin-off shall not have occurred and the No Spin-off
Purchase Right shall have accrued to DoCoMo and DoCoMo shall have elected not to
exercise such right within the time period provided for in Section 4.4:
(i) a third party unaffiliated with AT&T commences a tender or
exchange offer seeking to acquire 15% or more of AT&T's
outstanding voting securities and AT&T does not (within 10
Business Days following such commencement) publicly
recommend that its shareholders not accept such offer;
(ii) AT&T enters into a definitive agreement (or binding letter
of intent) with a third party (or group of related parties)
to effectuate a merger or consolidation with or sale of all
or substantially all of its assets and properties to, any
unaffiliated third party, unless immediately following such
transaction the Persons that immediately prior to such
transaction held the all of the classes of common stock of
AT&T, taken as a whole, directly or indirectly, at least 50%
of the equity and at least 50% of the voting power of the
entity surviving such merger or consolidation or to whom
such assets will be transferred; or
(iii) if AT&T enters into a definitive agreement (or binding
letter of intent) providing for a sale by AT&T of AT&T
securities, or a merger or consolidation, in either case
that would result in any one Person (or group of related
Persons) acquiring in excess of 35% of the voting power of
AT&T outstanding after completion of such transaction;
provided that (x) if the acquiror of the greater-than 35%
block is subject to a standstill that restricts its ability
to acquire more than its initial percentage of the voting
power of AT&T or to appoint a majority of its Board (and
such standstill is otherwise on substantially similar terms
as the provisions of Section 3.6 or, to the extent such
other terms are not substantially similar to the provisions
of Section 3.6, AT&T amends the provisions of Section 3.6 to
make the provisions of Section 3.6 substantially similar to
such terms of the other standstill), then the obligations
set forth in Section 3.6 (as so amended, if applicable)
shall not terminate by virtue of this clause (iii) unless
and until the standstill restrictions on the acquiror lapse
or are waived, and (y) anything in this clause (iii)
notwithstanding, DoCoMo shall continue to be subject to each
provision of Section 3.6 to the extent such provision
relates to the ability of DoCoMo to support, encourage,
cooperate with, participate with or act as a group or in
concert with the greater-than-35% acquiror with respect to
the securities of AT&T or AT&T's Board or management.
-24-
(d) The termination provisions of this Section 3.7 shall be in
addition to any limitations on or termination of the obligations of Section 3.6
expressly provided for above, including pursuant to Section 3.6(c).
Section 3.8 Voting. (a) DoCoMo agrees to cause each share of AT&T
Wireless Stock Beneficially Owned by it that is entitled to vote in any election
for Directors to be present in person or represented by proxy at all meetings of
stockholders of AT&T or AT&T Wireless, as the case may be, at which Directors
are to be elected, so that all such shares shall be counted as present for
determining the presence of a quorum at such meetings.
(b) DoCoMo agrees that at any meeting of the type referred to in
Section 3.8(a) it shall vote or cause to be voted all of the shares of AT&T
Wireless Stock Beneficially Owned by it that it is entitled to vote at such
meeting in accordance with one of the following (as determined by DoCoMo in its
sole discretion): (i) in favor of the slate of Directors nominated by the Board,
or (ii) for, against or abstain with respect to each nominee for Director in the
same proportion as the votes of all stockholders other than DoCoMo and its
Affiliates.
(c) The provisions of Section 3.8(a) and (b) shall not apply at any
time that AT&T or AT&T Wireless, as the case may be, is not in compliance with
its obligations under Section 3.1 or following the occurrence of an Investor
Rights Termination Event.
ARTICLE IV
OTHER COVENANTS
Section 4.1 Technology Commitment. (a) AT&T (prior to consummation
of the Spin-off) and AT&T Wireless (after consummation of the Spin-off) agree
that, except as set forth below, the Wireless Group (prior to the Spin-off) or
AT&T Wireless (after the Spin-off) will have launched service based on W-CDMA
technology in 13 of the top 50 wireless markets in the United States (defined as
BTAs numbered 1 through 50 set forth on Schedule 4.1 hereto) by June 30, 2004.
Failure to achieve this target will be excused (i) if DoCoMo at any time ceases
to actively support and promote W-CDMA technology as the primary standard for
its delivery of wireless services based on 3G technology or if DoCoMo is no
longer actively supporting and promoting wireless services based on 3G
technology, (ii) if the failure is due to factors beyond AT&T's (prior to
consummation of the Spin-off) or AT&T Wireless's (after consummation of the
Spin-off) reasonable power to affect or control, including, without limitation,
delay in availability, or unavailability, of equipment, software, spectrum, cell
sites or other items needed for the construction and operation of the W-CDMA
service, provided that AT&T (prior to consummation of the Spin-off) or AT&T
Wireless (after the consummation of the Spin-off) shall have used commercially
reasonable efforts to take reasonable steps to acquire such equipment, software,
spectrum, cell sites or other items so needed, (iii) if AT&T (prior to
consummation of the Spin-off) or AT&T Wireless (after the consummation of the
Spin-off) is unable to obtain regulatory approvals, licenses and permits
necessary for the launch of services based on W-CDMA technology on a timely
basis and without the imposition of burdensome conditions or restrictions,
provided that AT&T (prior to consummation of the Spin-off) and AT&T Wireless
(after the consummation of the Spin-off) shall have used commercially reasonable
efforts to take reasonable steps to obtain such approvals, licenses and permits,
or
-25-
(iv) if the Board determines in good faith that the Wireless Group's (prior to
consummation of the Spin-off) or AT&T Wireless's (after consummation of the
Spin-off) business plan for constructing such a system has deteriorated
significantly due to regulatory or legal changes, intellectual property
disputes, health, safety or other similar issues, or acts of God or other
natural events.
(b) The Wireless Group or AT&T Wireless, as the case may be, agrees
not to abandon W-CDMA technology without the prior approval of the Board of AT&T
or AT&T Wireless, as the case may be.
Section 4.2 Joint Research and Development Effort. Within twelve
months of the Closing Date or such other date as the parties mutually agree
upon, AT&T, AT&T Wireless and DoCoMo will discuss in good faith joint research
and development efforts.
Section 4.3 Technology Default Right. (a) In the event that either
(i) the Board requires or approves a change in the Wireless Group's (prior to
consummation of the Spin-off) or AT&T Wireless's (after consummation of the
Spin-off) use of W-CDMA technology as the primary standard for its delivery of
wireless services based on 3G technology (other than migration to successor
technologies and other than for one or more of the reasons set forth in clauses
(i) through (iv) of Section 4.1(a)) prior to June 30, 2004, or (ii) if AT&T
Wireless fails to meet the technology commitment set forth in Section 4.1(a)
above (other than for one or more of the reasons set forth in clauses (i)
through (iv) of Section 4.1(a)), DoCoMo may require AT&T (if prior to the
Spin-off) to repurchase (x) the shares of New Tracking Stock originally issued
to DoCoMo pursuant to the Purchase Agreement or shares of Current Wireless
Tracking Stock issued upon conversion of such originally issued shares of New
Tracking Stock and (y) the Warrants issued to DoCoMo pursuant to the Warrant
Agreement, in each of cases (x) and (y) that have not been Transferred by DoCoMo
(other than to a Designee in accordance with Section 6.1(a) hereof), or to
require AT&T Wireless (if after the Spin-off) to repurchase (1) the shares of
AT&T Wireless Common Stock that were issued in exchange for the shares of
Current Wireless Tracking Stock issued upon conversion of shares of New Tracking
Stock that were originally issued to DoCoMo pursuant to the Purchase Agreement,
and (2) the Warrants, in each of cases (1) and (2) that have not been
Transferred by DoCoMo (other than to a Designee in accordance with Section
6.1(a) hereof) (the "Technology Default Right"); provided, however, that the
Technology Default Right will terminate, and DoCoMo will not be entitled to
require such repurchase, if DoCoMo, at any time prior to delivery of the
Technology Default Exercise Notice, ceases to actively support and promote
W-CDMA technology as the primary standard for its delivery of wireless services
based on 3G technology. AT&T or AT&T Wireless, as the case may be, shall give
written notice to DoCoMo promptly following any Board action described in
Section 4.3(a)(i).
(b) The Technology Default Right will be exercisable only if notice
of exercise (the "Technology Default Exercise Notice") is given within 30 days
of written notice to DoCoMo of such Board action (in the case of clause (i) of
Section 4.3(a)) or by July 31, 2004 (in the case of clause (ii) of Section
4.3(a)).
(c) The repurchase price with respect to the Technology Default
Right will be (1) the Original Purchase Price of each Warrant , plus the Cost of
Carry on the Original Purchase
-26-
Price of each Warrant from the Closing Date to the date of payment (the "Warrant
Purchase Price") and (2) the Original Purchase Price of each share of AT&T
Wireless Common Stock plus the Cost of Carry on the Original Purchase Price of
each share from the Closing Date to the date of payment, (the "AT&T Wireless
Common Stock Purchase Price" and in aggregate, the "Technology Default
Repurchase Price"). If AT&T or AT&T Wireless exercises its rights under Section
4.3(e), the Cost of Carry on the Original Purchase Price of shares of AT&T
Wireless Common Stock will accrue to the date DoCoMo receives the last of the
net proceeds from the sales contemplated thereunder necessary for DoCoMo to have
received the AT&T Wireless Common Stock Purchase Price in the case of 4.3(e)(i)
or the Technology Default Repurchase Price in the case of 4.3(e)(ii). Subject to
Section 4.3(e) and 4.3(h), the closing of the repurchase by AT&T or AT&T
Wireless, as the case may be, of New Tracking Stock, Current Wireless Tracking
Stock or AT&T Wireless Common Stock, as the case may be, and Warrants pursuant
to this Section 4.3 shall take place as promptly as determined by AT&T or AT&T
Wireless, as the case may be, to be reasonably practicable (taking into account
the availability of financing and other considerations) following delivery of
the Technology Default Exercise Notice, but in any event no later than 9:00
A.M., New York time, on the first Business Day that is four months after the
Technology Default Exercise Notice is deemed to have been duly given to AT&T (if
prior to the Spin-off) or to AT&T Wireless (if after the Spin-off), pursuant to
Section 11.4 of this Agreement, or at such other time and place as DoCoMo and
AT&T or AT&T Wireless, as the case may be, shall agree. At such closing, DoCoMo
shall deliver to AT&T or AT&T Wireless, as the case may be, certificates
representing the securities and warrants to be sold by it and AT&T or AT&T
Wireless, as the case may be, shall transfer to DoCoMo the aggregate Technology
Default Repurchase Price in United States dollars by wire transfer of
immediately available funds to an account designated by DoCoMo (which
designation shall be made not less than two Business Days prior to such closing)
or, only as set forth in Section 4.3(h) with respect to the Warrant Purchase
Price , AT&T Wireless Common Stock. Subject to Section 4.3(e), upon valid
exercise by DoCoMo of the Technology Default Right hereunder, AT&T or AT&T
Wireless, as the case may be, and DoCoMo shall be legally obligated to
consummate the purchase contemplated thereby within the time period required and
shall use their reasonable efforts to secure any approvals required, and to
comply with all Federal, state and Japanese and other foreign laws and
regulations and securities exchange listing requirements applicable, in
connection therewith as soon as practicable.
(d) Upon exercise of the Technology Default Right hereunder, DoCoMo
shall cease to be entitled to any veto, Board representation, management
representation or other governance or management rights that it may have
hereunder (including without limitation under Sections 3.1, 3.2, 3.3, 3.4, 3.5
and 5.4 hereof) or under any of the Related Agreements, and DoCoMo will cause
the resignation of any of its appointees, nominees or representatives and
managers (including without limitation under Sections 3.1, 3.2, 3.3, 3.4, 3.5
and 5.4 hereof) to occur within five Business Days following the exercise of
such rights, and no DoCoMo appointee, nominee or designee will vote or exercise
any other rights or powers of office during such five Business Day period;
provided, however, that until payment of the Technology Default Repurchase Price
(or satisfaction of the alternative obligation set forth in Section 4.3(e)), and
so long as DoCoMo would otherwise be entitled to Board representation under
Section 3.1 hereof, DoCoMo shall be entitled to designate one individual to
serve on the AT&T Board (if prior to the Spin-off) or the AT&T Wireless Board
(if after the Spin-off) reasonably acceptable to AT&T or AT&T Wireless, for the
purpose of monitoring AT&T's or AT&T Wireless's compliance with
-27-
the repurchase obligations set forth in this Section 4.3, which individual shall
be unaffiliated with DoCoMo and shall agree not to provide DoCoMo or its
Affiliates with any confidential information of AT&T or AT&T Wireless other than
information directly related to AT&T's or AT&T Wireless's compliance with such
repurchase obligations; and provided further, that until payment of the
Technology Default Repurchase Price (or satisfaction of the alternative
obligation set forth in Section 4.3(e)), nothing herein shall impair DoCoMo's
rights as a stockholder of AT&T or AT&T Wireless, as the case may be.
(e) If AT&T Wireless has exercised its right to satisfy the Warrant
Purchase Price in shares of AT&T Wireless Common Stock pursuant to Section
4.3(h), then paragraph (i) below shall apply and all references in this
Agreement to Section 4.3(e) shall be deemed to be references to Section
4.3(e)(i), and if AT&T Wireless has not so exercised such right, then paragraph
(ii) below shall apply and all references in this Agreement to Section 4.3(e)
shall be deemed to be references to Section 4.3(e)(ii).
(i) In lieu of paying all or part of the AT&T Wireless Common
Stock Purchase Price, AT&T or AT&T Wireless, as the case may
be, will have the right to cause DoCoMo to sell all or part
of its shares of Current Wireless Tracking Stock (issuable
upon conversion of the New Tracking Stock) or AT&T Wireless
Common Stock ( excluding shares issued in respect of
Warrants pursuant to Section 4.3(h)) into the market (upon
registrations in accordance with the registration rights
procedures set forth in Article VII), subject to AT&T
Wireless paying DoCoMo the amount by which the proceeds
received by DoCoMo (net of underwriting commissions and
discounts) in such sale or sales are less than the aggregate
AT&T Wireless Common Stock Purchase Price with respect to
all shares so sold by DoCoMo. In connection with the
exercise of such right, AT&T or AT&T Wireless, as the case
may be, shall have the right to cause DoCoMo to convert any
shares of New Tracking Stock into shares of Current Wireless
Tracking Stock. The size and timing of such registered sales
will be determined mutually by AT&T or AT&T Wireless, as the
case may be, and DoCoMo in their good faith judgment, in
consultation with their underwriters and taking into account
DoCoMo's desire to sell its shares as quickly as reasonably
practicable and AT&T's or AT&T Wireless's desire not to
disrupt or depress the market for Current Wireless Tracking
Stock or AT&T Wireless Common Stock. Such sales will be
completed as promptly as reasonably practicable, but if such
sales are not completed within 10 months of the date the
Technology Default Exercise Notice is deemed to have been
duly given pursuant to Section 11.4, AT&T or AT&T Wireless,
as the case may be, will promptly (but in any event within
10 days after such 10-month anniversary) repurchase from
DoCoMo, and DoCoMo shall agree to sell to AT&T or AT&T
Wireless, as the case may be, any shares of AT&T Wireless
Stock and unexercised Warrants that were subject to the
Technology Default Right and that were not previously
repurchased pursuant to Section 4.3(c) or sold in the
registered offerings contemplated by this Section 4.3(e) for
an aggregate purchase price equal to the difference between
the (A)
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aggregate AT&T Wireless Common Stock Purchase Price that
AT&T or AT&T Wireless, as the case may be, would have been
obligated to pay to DoCoMo pursuant to Section 4.3(c) if
AT&T or AT&T Wireless, as the case may be, had not exercised
its rights under this Section 4.3(e) to cause DoCoMo to sell
shares in registered sales (assuming, for purposes of
determining the amount of Cost of Carry thereon, that AT&T
or AT&T Wireless, as the case may be, would have made
payments to DoCoMo at the times DoCoMo received proceeds
from such registered sales) and (B) the aggregate proceeds
received by DoCoMo (net of underwriting commissions and
discounts) in the registered sales or previously received
pursuant to Section 4.3(c). Except as provided in the
immediately preceding sentence, such repurchases shall be
made in accordance with the last two sentences of Section
4.3(c). In connection with any underwritten sales pursuant
to this Section 4.3(e), AT&T or AT&T Wireless, as the case
may be, and DoCoMo shall enter into a customary underwriting
agreement as contemplated by Article VII hereof no later
than immediately prior to the effectiveness of the
registration of the shares to be sold.
(ii) In lieu of paying all or part of the Technology Default
Repurchase Price, AT&T or AT&T Wireless, as the case may be,
will have the right to cause DoCoMo to sell all or part of
its shares of Current Wireless Tracking Stock (issuable upon
conversion of the New Tracking Stock or exercise of the
Warrants) or AT&T Wireless Common Stock (including shares
issuable upon exercise of the Warrants),) into the market
(upon registrations in accordance with the registration
rights procedures set forth in Article VII), subject to AT&T
Wireless paying DoCoMo the amount by which the proceeds
received by DoCoMo (net of underwriting commissions and
discounts) in such sale or sales are less than the aggregate
Technology Default Repurchase Price with respect to all
shares so sold by DoCoMo. In connection with the exercise of
such right, AT&T or AT&T Wireless, as the case may be, shall
have the right to cause DoCoMo to convert any shares of New
Tracking Stock into shares of Current Wireless Tracking
Stock, and the right to cause DoCoMo to exercise any
Warrants that are in the money and to convert any shares of
New Tracking Stock received upon such exercise into shares
of Current Wireless Tracking Stock. In the event that AT&T
or AT&T Wireless, as the case may be, elects to cause DoCoMo
to exercise any Warrants in order for AT&T or AT&T Wireless
to cause the sale of the Underlying Stock, then AT&T
Wireless shall make such provisions as are necessary so that
any required exercise of Warrants pursuant to the
immediately preceding sentence will be done on a "cashless"
basis, such that, upon exercise of such Warrants, DoCoMo
shall be deemed to have surrendered a number of shares of
Underlying Stock (as defined in the Warrant Agreement)
having an aggregate Current Market Price (as defined in the
Warrant Agreement, but substituting five days for the 20-day
period referred to therein) equal to the aggregate exercise
price payable with
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respect to all of the exercised Warrants, and DoCoMo shall
receive in respect of such Warrants a number of shares of
Underlying Stock equal to the difference between the total
number of shares subject to such exercised Warrants less the
number of such shares deemed to have been so surrendered,
and AT&T and AT&T Wireless shall be deemed to have agreed to
repurchase such surrendered Warrants pursuant to Section
4.3(c). The size and timing of such registered sales will be
determined mutually by AT&T or AT&T Wireless, as the case
may be, and DoCoMo in their good faith judgment, in
consultation with their underwriters and taking into account
DoCoMo's desire to sell its shares as quickly as reasonably
practicable and AT&T's or AT&T Wireless's desire not to
disrupt or depress the market for Current Wireless Tracking
Stock or AT&T Wireless Common Stock. Such sales will be
completed as promptly as reasonably practicable, but if such
sales are not completed within 10 months of the date the
Technology Default Exercise Notice is deemed to have been
duly given pursuant to Section 11.4, AT&T or AT&T Wireless,
as the case may be, will promptly (but in any event within
10 days after such 10-month anniversary) repurchase from
DoCoMo, and DoCoMo shall agree to sell to AT&T or AT&T
Wireless, as the case may be, any shares of AT&T Wireless
Stock and unexercised Warrants that were subject to the
Technology Default Right and that were not previously
repurchased pursuant to Section 4.3(c) or sold in the
registered offerings contemplated by this Section 4.3(e) for
an aggregate purchase price equal to the difference between
the (A) aggregate Technology Default Repurchase Price that
AT&T or AT&T Wireless, as the case may be, would have been
obligated to pay to DoCoMo pursuant to Section 4.3(c) if
AT&T or AT&T Wireless, as the case may be, had not exercised
its rights under this Section 4.3(e) to cause DoCoMo to sell
shares in registered sales (assuming, for purposes of
determining the amount of Cost of Carry thereon, that AT&T
or AT&T Wireless, as the case may be, would have made
payments to DoCoMo at the times DoCoMo received proceeds
from such registered sales) and (B) the aggregate proceeds
received by DoCoMo (net of underwriting commissions and
discounts) in the registered sales or previously received
pursuant to Section 4.3(c). Except as provided in the
immediately preceding sentence, such repurchases shall be
made in accordance with the last two sentences of Section
4.3(c). In connection with any underwritten sales pursuant
to this Section 4.3(e), AT&T or AT&T Wireless, as the case
may be, and DoCoMo shall enter into a customary underwriting
agreement as contemplated by Article VII hereof no later
than immediately prior to the effectiveness of the
registration of the shares to be sold.
(f) AT&T hereby irrevocably guarantees and promises to pay AT&T
Wireless's obligations pursuant to this Section 4.3 up to a maximum of $3.65
billion plus the Cost of Carry thereon to the date of payment by AT&T; provided
that AT&T will not be obligated to make any payment under this guarantee unless
AT&T Wireless fails to make a
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payment that it is obligated to make pursuant to this Section 4.3; provided,
further, that in the event there is a dispute as to AT&T Wireless's obligation
to make all or any portion of any payment pursuant to this Section 4.3, AT&T
will not be obligated to make such payment under this guarantee unless and until
such dispute is resolved in favor of DoCoMo by a final and nonappealable order
and AT&T Wireless thereafter fails to make such payment; and provided, further,
that in any event DoCoMo shall have used commercially reasonable efforts to
first collect payment from AT&T Wireless. In the event AT&T makes any payment to
DoCoMo pursuant to this guarantee, AT&T Wireless shall be obligated to reimburse
and indemnify AT&T for such payment (including any costs incurred by AT&T). AT&T
hereby agrees that any liability or obligation AT&T Wireless may have to AT&T as
a result of the immediately preceding sentence is hereby subordinated and made
junior to all obligations and liabilities of AT&T Wireless to DoCoMo under this
Section 4.3 and that AT&T will not receive or retain any payments with respect
to AT&T Wireless's liabilities or obligations as a result of the immediately
preceding sentence until the prior indefeasible payment in full of AT&T
Wireless's obligations to DoCoMo under this Section 4.3.
(g) The parties agree and acknowledge that exercise of the
Technology Default Right shall be DoCoMo's sole remedy in the event that the
technology commitment set forth in Section 4.1 is not met, and DoCoMo agrees not
to pursue any other remedy at law or in equity (it being understood that nothing
in this paragraph (g) shall impair any rights that DoCoMo might have with
respect to the breach of any provision of this Agreement to the extent not
related to implementation of technology or deployment of operating assets or
services).(h) In lieu of paying the Warrant Purchase Price in cash, AT&T
Wireless shall have the right, but not the obligation, to pay the Warrant
Purchase Price by delivering to DoCoMo AT&T Wireless Common Stock having an
aggregate Current Market Price equal to the aggregate Warrant Purchase Price. If
AT&T Wireless elects, in its sole discretion, to pay the Warrant Purchase Price
in AT&T Wireless Common Stock pursuant to this Section 4.3
(h) (a "Stock Payment Election") DoCoMo may request that such
payment be deferred until (i) such time as DoCoMo shall be entitled to sell such
shares in reliance upon Rule 144(k), or any successor provision, of the
Securities Act or (ii) closing of a sale by DoCoMo of all the shares to be
delivered to DoCoMo by AT&T Wireless pursuant to this Section 4.3(h) (a
"Dispositive Sale"), provided that closing of any Dispositive Sale occurs prior
to the 18 month anniversary of the date of the Technology Default Right Exercise
Notice (the "18 Month Anniversary")and provided further that, if a Dispositive
Sale has not occurred prior to the 10 month anniversary of the date of the
Technology Default Right Exercise Notice, then, during the 30 day period
immediately following such 10 month anniversary, AT&T Wireless may revoke its
Stock Payment Election and pay the Warrant Purchase Price in cash. For purposes
of a Dispositive Sale only, Current Market Price shall be deemed equal to the
net proceeds to be received by DoCoMo in such sale after giving effect to any
commissions or discounts. If DoCoMo has requested deferral of payment of the
Warrant Purchase Price and a Dispositive Sale has not occurred prior to the 18
Month Anniversary, then the Current Market Price shall be determined as of the
first Business Day following the 18 Month Anniversary. Any other provision of
this Agreement to the contrary notwithstanding, the maximum number of shares
AT&T Wireless shall be obligated to issue to satisfy its obligations under this
Section 4.3(h) , if it makes a Stock Payment Election, shall be 1,500,000,000,
provided, that such number shall be reduced to the extent that, at the time the
shares are issued, less than 1,500,000,000 shares are authorized and unissued
(and not reserved for issuance pursuant to outstanding options, warrants,
convertible securities, or other rights to
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acquire equity securities), and provided further, that, in no event shall the
maximum number of shares issuable pursuant to this Section 4.3(h) be reduced to
less than 750,000,000 shares. If DoCoMo has received a bona fide offer to
purchase such shares in a Dispositive Sale which it intends to accept and the
Current Market Price for purposes of such proposed Dispositive Sale is less than
30% of the Current Market Price as defined in Section 1.1, then DoCoMo shall
provide AT&T Wireless with written notification of such proposed Dispositive
Sale and the proposed Current Market Price. Within five Business Days of
receiving such notice, AT&T Wireless may, notwithstanding its prior election,
elect to pay the Warrant Purchase Price in cash. In such event, AT&T Wireless
shall immediately notify DoCoMo in writing of such election and shall deliver
the Warrant Purchase Price in cash to DoCoMo within five Business Days after
notifying DoCoMo of its election to pay the Warrant Purchase price in cash.
Payment of the Warrant Purchase Price via delivery of shares of AT&T Wireless
Common Stock shall be made as promptly as practicable but, in the event of a
Dispositive Sale, in no event later than three Business Days after receipt of
written notice of a Dispositive Sale.
Section 4.4 No Spin-off Repurchase Right. (a) In the event that AT&T
has not consummated the Spin-off on or prior to January 1, 2002 (or, at AT&T's
election, on or prior to March 15, 2002, which election shall be made in writing
to DoCoMo not later than December 15, 2001, in the event AT&T has not received a
satisfactory tax ruling with respect to the Spin-off as of the date of such
election but reasonably believes as of such date that it is possible to obtain
such a ruling by, or effect the Spin-off without a ruling by, March 15, 2002,
and is continuing in good faith to seek such a ruling or to effect the Spin-off
without a ruling), DoCoMo will have the right, at its election (the "No Spin-off
Right"), to require AT&T to:
(i) repurchase from DoCoMo (x) the New Tracking Stock initially
issued to DoCoMo pursuant to the Purchase Agreement or the
shares of Current Wireless Tracking Stock issued upon
conversion of such shares of New Tracking Stock and (y) the
Warrants issued to DoCoMo pursuant to the Warrant Agreement
and in each case that have not been Transferred by DoCoMo
(other than to any Designee in accordance with Section
6.1(a) hereof), at the Original Purchase Price of each
Warrant and each share of New Tracking Stock or Current
Wireless Tracking Stock so repurchased, in each case plus
the Cost of Carry thereon from the Closing Date to the date
of payment (the "No Spin-off Repurchase Price"); or
(ii) enable DoCoMo to sell shares of Current Wireless Tracking
Stock issuable upon conversion of such shares of New
Tracking Stock and exercise of such Warrants, by registering
the sale of such shares of Current Wireless Tracking Stock
through registrations in accordance with the registration
rights procedures set forth in Article VII.
(b) The No Spin-off Right will be exercisable only if DoCoMo
provides AT&T with written notice thereof within 30 days following January 1,
2002 or March 15, 2002, whichever is the applicable date for triggering the No
Spin-off Right.
(c) In the event DoCoMo makes the election set forth in clause (i)
of Section 4.4(a), the closing of the repurchase by AT&T of (i) the New Tracking
Stock or Current Wireless
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Tracking Stock and (ii) Warrants contemplated thereby shall take place no later
than 9:00 A.M., New York time, on April 15, 2002 (if the applicable triggering
date is January 1, 2002), or as soon as reasonably practicable but no later than
June 15, 2002 (if the applicable triggering date is March 15, 2002), at the
offices of AT&T as indicated in Section 11.4 of this Agreement, or at such other
time and place as DoCoMo and AT&T shall agree. At such closing, DoCoMo shall
deliver to AT&T certificates representing the New Tracking Stock or Current
Wireless Tracking Stock and Warrants to be sold by it and AT&T shall transfer to
DoCoMo the aggregate No Spin-off Repurchase Price in United States dollars by
wire transfer of immediately available funds to an account designated by DoCoMo
(which designation shall be made not less than two Business Days prior to such
closing). Upon valid exercise by DoCoMo of the election set forth in clause (i)
of Section 4.4(a), AT&T and DoCoMo shall be legally obligated to consummate the
purchase contemplated thereby within the time period required and shall use
their reasonable efforts to secure any approvals required, and to comply with
all Federal, state and Japanese and other foreign laws and regulations and
securities exchange listing requirements applicable, in connection therewith as
soon as practicable.
(d) In the event DoCoMo makes the election set forth in clause (ii)
of Section 4.4(a), the size and timing of such registered sales will be
determined mutually by AT&T and DoCoMo in their good faith judgment, in
consultation with their underwriters and taking into account DoCoMo's desire to
sell its shares as quickly as reasonably practicable and AT&T's desire not to
disrupt or depress the market for Current Wireless Tracking Stock. In connection
with any underwritten sales pursuant to this Section 4.4, AT&T and DoCoMo shall
enter into a customary underwriting agreement as contemplated by Article VII
hereof no later than immediately prior to the effectiveness of the registration
of the shares to be sold.
(e) AT&T agrees to use its commercially reasonable efforts to obtain
a satisfactory tax ruling with respect to the Spin-off.
Section 4.5 Reinvestment Right. (a) In the event AT&T redeems the
New Tracking Stock under the circumstances referred to in Section 5(a) or 5(b)
of the Certificate of Amendment (a "Permitted Redemption"), and within one year
of such Permitted Redemption AT&T completes a spin-off to its shareholders, by
way of dividend distribution or similar pro rata distribution to the holders of
common stock of AT&T, of all or substantially all of the businesses that
currently constitute the businesses of the Wireless Group (a "Post-Redemption
Spin-off"), then DoCoMo shall have the right to invest in and acquire, and AT&T
shall provide DoCoMo with such right to invest in and acquire shares of such
spun-off entity ("SpinCo"), as follows:
(i) If AT&T intends to effect a Post-Redemption Spin-off within
one year of a Permitted Redemption, it shall provide DoCoMo
with not less than 90 days' notice of the earliest expected
date for consummation of such Post-Redemption Spin-off.
(ii) If DoCoMo desires to exercise its rights under this Section
4.5(a), then not later than 90 days prior to the earliest
expected date for consummation of the Post-Redemption
Spin-off as set forth in such notice (or, if AT&T has not
provided at least 120 days' advance notice of the earliest
expected
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consummation date, within 30 days of receipt by DoCoMo of
notice from AT&T of the earliest expected consummation
date), DoCoMo shall deliver to AT&T a notice stating that
DoCoMo desires to exercise its rights under this Section
4.5(a). DoCoMo may withdraw such notice of exercise only if
the actual consummation is delayed more than 120 days beyond
the earliest expected consummation date set forth in the
notice referred to in clause (i).
(iii) Unless DoCoMo's notice of exercise has been withdrawn in
accordance with clause (ii), concurrently with (or, at
AT&T's election, immediately prior to) the consummation of
the Post-Redemption Spin-off, (A) DoCoMo shall purchase a
number of shares of common stock of SpinCo (the "Acquired
SpinCo Shares") equal to (1) the Economic Interest
Percentage that would be represented as of immediately prior
to the Permitted Redemption solely by the shares of New
Tracking Stock redeemed in such Permitted Redemption
multiplied by (2) the number of shares of SpinCo common
stock that would be outstanding on a Fully Diluted Basis
immediately after the Post-Redemption Spin-off and after
giving effect to the issuance of the Acquired SpinCo Shares,
(B) the aggregate purchase price for such Acquired SpinCo
Shares shall be equal to the aggregate amount received by
DoCoMo in respect of its New Tracking Stock in the Permitted
Redemption, (C) if DoCoMo held any Warrants that were
redeemed concurrently with such Permitted Redemption as
contemplated by Section 6.1 of the Warrant Agreement, then
DoCoMo shall be entitled to purchase warrants (the "Acquired
SpinCo Warrants") to purchase a number of shares SpinCo
common stock (the "SpinCo Warrant Number") determined by
multiplying (1) the Warrant Percentage by (2) the number of
shares of SpinCo common stock that would be outstanding on a
Fully Diluted Basis immediately after the Post-Redemption
Spin-off and after giving effect to the issuance of the
Acquired SpinCo Shares and the exercise of the Acquired
SpinCo Warrants, at an exercise price per share of SpinCo
common stock equal to the aggregate exercise price of all of
the Warrants held by DoCoMo that were redeemed concurrently
with the Permitted Redemption divided by the SpinCo Warrant
Number, (D) the aggregate purchase price for such Acquired
SpinCo Warrants shall be equal to the aggregate amount
received by DoCoMo in respect of its Warrants that were
redeemed concurrently with the Permitted Redemption, and (E)
DoCoMo, SpinCo and/or AT&T shall enter into an investor
agreement, warrant agreement and such other agreements as
may be necessary and appropriate such that the terms and
conditions of DoCoMo's investment in SpinCo are, as nearly
as possible, comparable to the terms and conditions of the
Investment and the Alliance as set forth in this Agreement
and the Related Agreements. For purposes of the foregoing,
the "Warrant Percentage" shall mean the Economic Interest
Percentage that would be represented as of immediately prior
to the Permitted Redemption solely by the shares of New
Tracking Stock issuable upon exercise of any Warrants held
by
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DoCoMo that were redeemed in such Permitted Redemption, if
such Warrants had been exercised immediately prior to the
Permitted Redemption.
(iv) The aggregate purchase price payable pursuant to clause
(iii) above shall be paid to AT&T at the closing of such
purchase in United States dollars by wire transfer of
immediately available funds to an account designated by AT&T
(which designation shall be made not less than two Business
Days prior to such closing). AT&T agrees that if AT&T
Wireless paid any portion of the redemption price paid to
DoCoMo and its Subsidiaries in connection with any Permitted
Redemption, then at the closing of the purchase referred to
in the previous sentence, AT&T shall contribute to SpinCo a
portion of the purchase price paid in respect of such
purchase equal to the portion of the redemption price paid
by AT&T Wireless.
(b) In the event that AT&T redeems the New Tracking Stock in a
Permitted Redemption pursuant to Section 5(b) of the Certificate of Amendment
and, within one year of such Permitted Redemption, AT&T announces that it has
entered into a binding agreement to sell (a "Post-Redemption Sale") all or
substantially all of the businesses that currently constitute the businesses of
the Wireless Group (the "Sold Businesses"), then, upon consummation of such
Post-Redemption Sale, AT&T shall pay or deliver to DoCoMo the excess, if any, of
(i) the product of (A) DoCoMo's Economic Interest Percentage immediately prior
to such Permitted Redemption (assuming exercise of all Warrants held by DoCoMo
that were redeemed in such Permitted Redemption) and (B) the net proceeds to
AT&T from the Post-Redemption Sale, over (ii) the sum of (A) the aggregate
proceeds received by DoCoMo in respect of the Permitted Redemption of its New
Tracking Stock and the concurrent redemption of any Warrants held by DoCoMo plus
(B) the aggregate exercise price that would have been payable upon exercise of
such Warrants. The form of consideration AT&T shall use to satisfy its
obligation pursuant to the immediately preceding sentence shall be the same form
of consideration (or same mix if a mix of consideration is received) received by
AT&T in the Post-Redemption Sale. The foregoing notwithstanding, DoCoMo may
elect to have such payment, if any, calculated without regard to the Warrants,
in which event all references to the Warrants in the foregoing calculation shall
be disregarded. AT&T shall make such payment to DoCoMo, if any, not later than
10 Business Days following the consummation of the Post-Redemption Sale, such
payment to be made in United States dollars by wire transfer of immediately
available funds to an account designated by DoCoMo (which designation shall be
made not less than two Business Days prior to the date such payment is due).
Section 4.6 Financial Statement Cooperation. AT&T (prior to the
Spin-off) and AT&T Wireless (after the Spin-off) agree to use all reasonable
efforts to provide DoCoMo with such financial information as it may reasonably
request from time to time, as may be necessary in order for DoCoMo to prepare
such consolidated financial reports as it is required to prepare under
applicable law; provided that to the extent any of such information is
non-public information, (i) such non-public information shall be disclosed
pursuant to customary confidentiality restrictions that (A) limit dissemination
of such information to those employees and agents of DoCoMo and its Subsidiaries
having a need to know in connection with the preparation of such consolidated
financial reports, (B) prohibit public disclosure of such non-
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public information and (C) prohibit inclusion of such information in any portion
of the consolidated financial statements that become publicly disclosed, in each
case prior to the time any such information is publicly disclosed by AT&T or
AT&T Wireless, as the case may be, and (ii) DoCoMo agrees to use all reasonable
efforts to prevent such non-public information from becoming disclosed or
disseminated prior to the time any such information is publicly disclosed by
AT&T or AT&T Wireless, as the case may be, other than to those having a need to
know in connection with the preparation of such consolidated financial reports.
ARTICLE V
MOBILE MULTIMEDIA ALLIANCE
Section 5.1 The Mobile Multimedia Alliance and the MMS. (a) As soon
as practicable after the Closing, DoCoMo and AT&T Wireless (the "Alliance
Partners") shall form a mobile multimedia alliance (the "Alliance") on the terms
and conditions described in this Article V, having the goals described in
Section 5.1(b). Pursuant to the Alliance, each of the Alliance Partners shall
cooperate in operational and technological matters affecting the delivery of
i-mode mobile multimedia services to subscribers, as well as the development and
delivery of i-mode mobile multimedia content and applications.
(b) The Alliance will have the following goals: (i) to develop
wireless internet access and related mobile multimedia applications and services
from wireless phones and other wireless access devices based on DoCoMo's i-mode
and multimedia expertise, experience, know-how and technology; (ii) to achieve
synergies with AT&T Wireless' mobility division, including to develop and
provide advanced data and multimedia services offerings that create and enhance
customer loyalty and create new revenue sources for AT&T Wireless; and (iii) to
accelerate the growth of each Alliance Partner's existing mobile multimedia and
data service businesses by utilizing each other's current and future technology,
experience and know-how in their respective Home Territories.
(c) As soon as practicable following the Closing (and with the
Alliance Partners using commercially reasonable efforts to do so within three
months of Closing), AT&T Wireless shall form a wholly owned subsidiary (which
subsidiary may be a limited liability company, corporation or other entity),
which will be wholly owned and controlled (directly or indirectly) by AT&T
Wireless (such entity is referred to herein as the "MMS"). The MMS will be
responsible for the development and commercialization of i-mode mobile
multimedia content and applications over the AT&T Wireless network in the AT&T
Wireless Home Territory.
Section 5.2 Technology Evolution and Timing. (a) The Alliance
Partners each shall use commercially reasonable efforts to jointly: (i) seek to
enable users to access diverse HTML and x-HTML applications and content on
mobile wireless terminals, and (ii) encourage terminal manufacturers to produce
a variety of attractive and economical devices that are compatible with the
following technology path:
HDML/WML -->cHTML (as commercially reasonable in the United States)
-->xHTML/WAP-NG
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(b) As an interim step toward the development of xHTML/WAP-NG, and
in furtherance of the goals set forth in Section 5.1(b) and Section 5.2(a), the
Alliance Partners shall jointly approach terminal manufacturers concerning the
development, production and marketing of dual browser handsets, and shall work
jointly with such manufacturers with respect to functions, specification and
design for such handsets.
(c) The Alliance Partners shall use commercially reasonable efforts
to adopt 3G technology paths that target convergence upon worldwide standards
for data and air interface protocols (i.e., WAP-NG and W-CDMA).
(d) As soon as practicable following the Closing, the Alliance
Partners jointly shall (i) commence study on DoCoMo's service platform elements
that may be of benefit to the MMS, including, but not limited to, profiling
engines, data warehouses and clickstream analysis and (ii) study the feasibility
of accelerating the delivery to market of advanced devices and related
technologies that can increase the growth and performance of AT&T Wireless and
the MMS. The Alliance Partners acknowledge and agree that any business plan
resulting from these studies, including the Business Plan referred to in Section
5.5 below, should be efficient and have a benefit/cost relationship that is
positive in terms of economics and market position for AT&T Wireless.
Section 5.3 Contributions and Resources. (a) AT&T Wireless shall
contribute the following to the MMS:
(i) Multimedia resources:
(A) PocketNet service, experience and personnel;
(B) rights to current content, commerce and applications;
and
(C) gateway, email and related application servers.
(ii) AT&T Wireless agrees that it will earmark an amount of cash
sufficient to fund the business plan of the MMS (as
described in Section 5.5 below), until such time as the
business is cash flow positive; provided, however, that AT&T
Wireless shall not be required to make available to the MMS
in excess of $200 million.
(b) DoCoMo shall, among other things, assist AT&T Wireless and the
MMS in achieving the goals set forth in Sections 5.1 and 5.2 hereof by providing
the MMS with information exchange opportunities and access to technology,
know-how and resources, including support in the categories outlined in Schedule
5.3(b) hereto. Such contributions shall include, without limitation:
(i) the exclusivity and noncompete provisions set forth in
Article X;
(ii) the items and support described in Schedule 5.3(b) hereof;
(iii) handset specifications and development expertise and
influence;
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(iv) standardization influence;
(v) i-mode experience, such as negotiations with content
providers; and
(vi) licenses to all DoCoMo know-how, technology and intellectual
property rights related to i-mode mobile multimedia services
(up to and including 3G) as it is developed; sole use of the
i-mode brand in the USA, and other know-how developed for
mobile multimedia services. It is understood, for purposes
of clarification, that "i-mode mobile multimedia technology
(up to and including 3G)" as used herein includes mobile
Internet gateway designs, and user interface designs, but
does not include technology which solely relates to 3G
network architecture and infrastructure, which will be
subject to separate negotiations based upon commercially
reasonable licensing terms and conditions. Such licenses
shall be subject to that certain letter agreement, dated
November 30, 2000, by and among DoCoMo, AT&T and AT&T
Wireless.
Although, with respect to the contributions and licenses made or granted by
DoCoMo under this Section 5.3(b) and in particular with respect to 5.3(b)(ii)
and (vi), DoCoMo agrees to provide these contributions and licenses based on and
including all of its rights (now held or later acquired) to such contributions
and licenses in Japan and, if any, in the Home Territory of AT&T Wireless,
DoCoMo does not make any representation or warranty as to whether such rights,
experience, know-how and technology can be lawfully used in the Home Territory
of AT&T Wireless in the same manner as used in Japan, or at all. DoCoMo does
represent and warrant, however, that, at the time of the execution of this
Agreement, to the actual knowledge of the Executive Manager of the Intellectual
Property Department of DoCoMo (upon reasonable inquiry of persons reporting to
him), there are no third-party rights or claims that would render the use of the
contributions or licenses by AT&T Wireless in its Home Territory unlawful or
infringing, or actual knowledge of any limitations on the use of these
contributions and licenses in the Home Territory of AT&T Wireless, except as
disclosed in that certain letter pertaining to this paragraph sent by DoCoMo to
AT&T Wireless on the date of this Agreement. Accordingly, DoCoMo shall not be
responsible to AT&T Wireless, other than for breach of the representations and
warranties in the immediately preceding sentence, for any damages that may arise
in connection with the use of these contributions and licenses by AT&T Wireless
in its Home Territory. DoCoMo shall make all commercially reasonable efforts as
AT&T may reasonably request from time to time to assist AT&T Wireless in
obtaining for AT&T Wireless the right to use or exploit these contributions and
licenses in its Home Territory.
(c) Subject to mutual agreement by AT&T Wireless and DoCoMo based on
the needs of the MMS and resource availability, DoCoMo shall second to AT&T
Wireless such employees as may be mutually beneficial for the free exchange of
information. The Alliance Partners anticipate that DoCoMo will provide
approximately two to three employees for the initial two years following the
Closing, approximately three to five employees during the period of AT&T
Wireless's deployment of 3G technology, and two to three employees thereafter.
The ultimate number of employees of DoCoMo seconded each year shall be
determined by the Advisory Committee. DoCoMo will also accept up to two
employees from AT&T Wireless to work in Tokyo with DoCoMo's gateway, mobile
multimedia or other appropriate division in the
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Tokyo region. DoCoMo will credit $1 million per year to cover the cost of DoCoMo
secondees to AT&T Wireless, and the Alliance Partners have agreed to discuss
whether such amount would also cover AT&T Wireless employees exchanged to
DoCoMo. The Alliance Partners also agree to use commercially reasonable efforts
to set up regular meetings to facilitate transfer of know-how. The
qualifications of DoCoMo personnel available for secondment will be provided to
AT&T Wireless for consideration as opportunities arise for placement within the
MMS.
(d) Neither DoCoMo nor, except as specifically set forth in Section
5.3(a)(ii), AT&T Wireless shall have any obligation to fund losses of the MMS,
and except as set forth in this Section 5.3, no Person shall have any obligation
to make any contribution to the MMS. The foregoing notwithstanding, AT&T
Wireless and, prior to the Spin-off, AT&T, shall be entitled to any tax benefits
attributable to losses of the MMS.
Section 5.4 Advisory Committee and Senior Management. (a) As soon as
practicable after the Closing, AT&T Wireless shall appoint an interim Chief
Executive Officer of the MMS (the "MMS CEO"), following consultation with
DoCoMo, to oversee and manage the initial activities of the MMS, or to manage
the MMS during any periods in which the office of MMS CEO is vacant. DoCoMo and
AT&T Wireless will use their commercially reasonable efforts to select and
appoint a mutually satisfactory permanent MMS CEO within six months after the
Closing or within six months of the creation of any vacancy. The MMS CEO shall
be a person with extensive experience and background with data related services
or similar skills in the United States and be sufficiently familiar with United
States markets. The MMS CEO, as MMS CEO, shall be an employee of AT&T Wireless
(or one of its subsidiaries) and work in the headquarters of AT&T Wireless or
such other location as may be determined for the primary offices of the MMS.
(b) As soon as practicable after the Closing, AT&T Wireless and
DoCoMo shall establish a management advisory committee (the "Advisory
Committee") to assist and advise the MMS CEO. The Advisory Committee will, among
other things, assist and advise the MMS CEO in reviewing and updating the
business plan and strategy of the MMS. The Alliance Partners anticipate that the
Advisory Committee will meet on a regular basis or as requested by the MMS CEO.
The composition and size of the Advisory Committee will be mutually agreed upon
by the Alliance Partners, it being understood and agreed that DoCoMo will have
significant, but not majority, representation on the Advisory Committee.
(c) DoCoMo shall have the right to appoint the Chief Technology
Officer of the MMS, subject to the approval of AT&T Wireless.
Section 5.5 Business Plan. (a) As soon as practicable following the
Closing, AT&T Wireless, in consultation with DoCoMo, shall prepare a business
strategy and plan (the "Business Plan") for the first 18 months of operations of
the MMS. The Business Plan will be updated as appropriate in light of changing
business dynamics and business needs.
(b) Subject to the Business Plan in effect from time to time, it is
anticipated that the MMS will have responsibility for AT&T Wireless's mobile
multimedia business, such as:
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(i) mobile Internet server operation;
(ii) application/service deployment, including streaming of music
and video and e-commerce applications;
(iii) negotiations with content providers;
(iv) terminal functions planning, design and specifications in
conjunction with AT&T Wireless's mobile services division;
(v) development of operational and technical standards in
conjunction with AT&T Wireless's mobile services division;
and
(vi) brand development for the MMS.
Section 5.6 Termination. (a) All obligations of the Alliance
Partners set forth in this Article V may be terminated upon delivery of written
notice in accordance with Section 11.4 hereof by either Alliance Partner
following the occurrence of an Investor Rights Termination Event, except that
(i) all DoCoMo technology and intellectual property rights licenses shall
continue for 18 months after delivery of such notice by either Alliance Partner
and (ii) termination of any agreements entered into pursuant to Section 5.7
hereof shall be pursuant to the terms of those agreements.
(b) In the event that an Investor Rights Termination Event has
occurred as a result of the exercise by DoCoMo of its Technology Default Right
or No Spin-off Right, or as a result of a Permitted Redemption, all obligations
of the Alliance Partners with respect to this Article V will terminate at the
end of the 90 day period giving rise to the Investor Rights Termination Event.
(c) In the event that DoCoMo ceases to provide access to licenses on
the basis and as described in Section 5.3(b)(vi) and pursuant to that certain
letter dated November 30, 2000 relating to the licensing of such technology,
AT&T Wireless may, without limitation of any other remedies that may be
available, terminate all obligations of the Alliance Partners with respect to
the Alliance.
Section 5.7 Other Operational Cooperation. (a) DoCoMo and AT&T
Wireless shall negotiate in good faith and use reasonable efforts to enter into
separate definitive agreements memorializing the principles set forth in this
Section 5.7(a). DoCoMo and AT&T Wireless will each recognize the other party as
its primary and preferred operating partner for mobile wireless services in the
other party's Home Territory. Specific areas of operational cooperation by
DoCoMo and AT&T Wireless will include:
(i) Roaming. DoCoMo and AT&T Wireless will, subject to technical
and commercial feasibility, each recognize the other party
as its primary and preferred roaming partner in the other
party's Home Territory service area, subject to both
parties' existing roaming arrangements and agreements as of
November 30, 2000. Nothing contained herein shall provide
either party with any rights that would conflict with such
existing roaming
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agreements for so long as such existing roaming agreements
remain in effect. DoCoMo and AT&T Wireless shall use
commercially reasonable efforts to negotiate in good faith
roaming arrangements with each other on reciprocal terms no
less favorable than those provided to similar wireless
providers; provided that such arrangements shall not in any
way conflict with either party's existing roaming
agreements. Each party acknowledges that there may be
substantial technical and other obstacles to achieving such
roaming arrangements and each party agrees to take
commercially reasonable steps, if any such exist, to
overcome such obstacles; provided that no party shall be
required to take any such steps that, from an economic
perspective, would not be commercially reasonable. Nothing
contained herein shall be deemed to create any obligation of
exclusivity between DoCoMo and AT&T Wireless with respect to
their roaming agreements in each other's Home Territory.
(ii) Joint-Marketing Programs and Offers. DoCoMo and AT&T
Wireless will use commercially reasonable efforts to
cooperate in designing, to the extent commercially feasible,
programs and offers that market and provide mobile wireless
services that are intended to extend from one party's Home
Territory into the other party's Home Territory. The sharing
of customer information will be subject to such limitations
as may be imposed by applicable law and regulation.
(iii) Major Account Services. DoCoMo and AT&T Wireless will both
participate, to the extent commercially feasible, in
programs that will enable each to provide differentiated
services to major customers with global mobile wireless
telecommunication needs in the United States and Japan. Such
programs will include AT&T Wireless's Worldview program,
which allows large business customers to receive monthly
consolidated reports covering wireless usage in relevant
territories.
ARTICLE VI
TRANSFER RESTRICTIONS
Section 6.1 Transfer Restrictions. (a) Without the prior written
consent of AT&T Wireless, DoCoMo will not Transfer (i) any shares of New
Tracking Stock and (ii) for a period of eighteen months following the Closing
Date (except as otherwise provided below), any shares of Current Wireless
Tracking Stock, AT&T Wireless Common Stock or Warrants, except Transfers by
DoCoMo to any directly or indirectly wholly owned Subsidiary of DoCoMo (each
such transferee, a "Designee"); provided that prior to such Transfer such
Designee agrees in writing with AT&T Wireless to itself be bound by all the
provisions of this Agreement as if such transferee were DoCoMo. Nothing in this
Section 6.1(a) shall limit DoCoMo's right to make Transfers in accordance with
and to the extent provided in Sections 4.3 and 4.4 hereof. In the event that
during the initial 18-month period any such transferee that is a directly or
indirectly wholly owned Subsidiary of DoCoMo ceases to be a directly or
indirectly wholly owned Subsidiary, then any prior Transfer to such Subsidiary
shall immediately become null and void
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and ownership and title to any securities previously Transferred to such
Subsidiary shall revert to DoCoMo.
(b) The foregoing notwithstanding, DoCoMo may Transfer shares of
Current Wireless Tracking Stock, AT&T Wireless Common Stock or Warrants without
AT&T Wireless's prior written consent prior to the expiration of 18 months
following the Closing Date, subject to the other provisions of this Section 6.1,
upon the occurrence of either of the following events: (1) a sale of all or
substantially all the assets of the Wireless Group, or a merger, consolidation
or similar business combination involving all or substantially all of the
business of the Wireless Group, other than any such transaction in which the
holders of the Economic Interests in the Wireless Group as of immediately prior
to the consummation of such transaction continue to hold, directly or
indirectly, at least two-thirds of such Economic Interests in the Wireless Group
or the successor corporation to the Wireless Group following such transaction,
or (2) the acquisition or acquisitions (including by merger or other similar
transaction) of any business or assets by the Wireless Group (other than
acquisitions of spectrum) after the Closing Date if the consideration paid by or
on behalf of the Wireless Group with respect to all such acquisitions exceeds
$25 billion. In addition, DoCoMo may tender shares of Current Wireless Tracking
Stock or AT&T Wireless Common Stock, prior to the expiration of 18 months
following the Closing Date, into a tender offer or exchange offer that is
approved by the Board.
(c) Except as set forth in the next sentence, DoCoMo's rights under
this Agreement (and the Related Agreements) will not be transferable to any
transferee of any shares of AT&T Wireless Stock, other than a transferee that is
and remains a wholly owned Subsidiary of DoCoMo (and has entered into an
agreement with AT&T Wireless as set forth in Section 6.1(a)). DoCoMo may
transfer registration rights described in Article VII hereof to any transferee
of more than $1 billion of AT&T Wireless Stock from DoCoMo, and may transfer one
of its demand registration rights to any transferee of the Warrants (which
registration right shall apply only to registration of the Current Wireless
Tracking Stock or AT&T Wireless Common Stock issuable upon exercise of the
Warrants and not to the Warrants themselves and not to any New Tracking Stock
issued upon exercise of Warrants, but shall apply even if the amount of
Registrable Securities is less than the $500 million minimum contemplated by
Section 7.1(a)). DoCoMo shall provide written notice to AT&T and AT&T Wireless
within 10 Business Days from the date of consummation of the Transfer of any
such transfer of registration rights, which notice shall set forth in detail the
terms of any such Transfer. Unless and until such notice is received by AT&T or
AT&T Wireless, as the case may be, neither AT&T nor AT&T Wireless shall be
required to honor any registration rights of any such Transferee. In the event
demand registration rights are transferred in accordance with this Section
6.1(c), each reference to DoCoMo in Article VII hereof, to the extent such
reference and the relevant circumstances pertain to a Demand Registration, shall
be deemed to be or include, as appropriate, such transferee of demand
registration rights hereunder. Anything herein to the contrary notwithstanding,
nothing herein, and no such transfers of rights, shall alter or enlarge AT&T's
or AT&T Wireless's aggregate registration obligations under this Agreement.
(d) Without AT&T's approval (prior to the Spin-off) or AT&T
Wireless's approval (following the Spin-off), DoCoMo may not at any time
Transfer securities to any one Person such that, after giving effect to the
Transfer, such Person would Beneficially Own in excess of 6% of the outstanding
Current Wireless Tracking Stock (before the Spin-off) or in
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excess of 6% of the outstanding AT&T Wireless Common Stock (following the
Spin-off); provided that in the case of a Transfer of shares to a Person
specified in Rule 13d-1(b)(1)(ii) under the Exchange Act that would be eligible
based on such Person's status and passive intent with respect to the ownership,
holding and voting of such shares to report such Person's ownership on Schedule
13G under the Exchange Act, DoCoMo may Transfer to such Person up to a number of
shares such that, after giving effect to the Transfer, such Person would not
beneficially own in excess of 10% of the outstanding Current Wireless Tracking
Stock (before the Spin-off) or in excess of 10% of the outstanding AT&T Wireless
Common Stock (following the Spin-off). Any Transfer of the Warrants will be
subject to the foregoing restrictions (applied as if the Transferee had fully
exercised the transferred Warrants), and to all other transfer restrictions set
forth herein or in the Warrant Agreement.
(e) Any certificates for shares of AT&T Wireless Stock issued
pursuant to the Purchase Agreement or issued thereafter in respect of any
Transfer shall bear a legend or legends referencing restrictions on transfer of
such shares under the Securities Act and under this Agreement; provided, that
the holder of any certificate(s) bearing any such legend referencing
restrictions under the Securities Act shall be entitled to receive from AT&T,
with respect to Current Wireless Tracking Stock, or AT&T Wireless, with respect
to AT&T Wireless Common Stock, new certificates for a like number of shares of
such AT&T Wireless Stock not bearing such legend upon the request of such holder
and upon (x) such time as such restriction under this Agreement is no longer
applicable, with respect to restrictions related to this Agreement and (y)
delivery of an opinion of counsel to such holder, which opinion is reasonably
satisfactory in form and substance to AT&T or to AT&T Wireless, as the case may
be, and its counsel, that the restriction referenced in such legend is no longer
required in order to ensure compliance with the Securities Act.
ARTICLE VII
REGISTRATION RIGHTS
Section 7.1 Demand Registrations. (a) Subject to Section 7.3, at any
time following the eighteen-month anniversary of the Closing (or with respect to
a registration that would become effective following such eighteen-month
anniversary, following the seventeen-month anniversary of the Closing or at any
time following the occurrence of an event described in Section 6.1(b)), DoCoMo
may, on not more than seven (7) separate occasions in the aggregate, and on not
more than six (6) separate occasions with respect to any Registrable Securities
other than Registrable Securities issued pursuant to Section 4.3 (h) hereof,
require (i) prior to the Spin-off, AT&T to file a registration statement under
the Securities Act in respect of all or a portion of DoCoMo's Registrable
Securities or (ii) following the Spin-off, AT&T Wireless to file a registration
statement under the Securities Act in respect of all or a portion of DoCoMo's
Registrable Securities; provided, in each case, that such request involves
Registrable Securities having an aggregate Market Value on the date of delivery
of such request of at least $500 million (provided that, with respect to a
registration statement which relates solely to Registrable Securities issued
pursuant to Section 4.3(h) hereof, such request shall be for (i) that number of
Registrable Securities equal to the number of Registrable Securities originally
issued
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to DoCoMo pursuant to Section 4.3(h) hereof or (ii) Registrable Securities with
an aggregate Market Value of not less than $300 million )) by delivering to the
Issuer written notice stating that such right is being exercised, specifying the
number of shares of Current Wireless Tracking Stock or AT&T Wireless Common
Stock to be included in such registration (the shares subject to such request,
the "Demand Shares") and describing the intended method of distribution thereof,
which may include an underwritten offering (a "Demand Request"). Upon receiving
a Demand Request, the Issuer shall (i) use all reasonable efforts to file as
promptly as reasonably practicable a registration statement on such form as it
may reasonably deem appropriate (provided that in no event shall the Issuer be
obligated to register any securities on a "shelf" registration statement or
otherwise to register securities for offer or sale on a continuous or delayed
basis) providing for the registration of the sale of such Demand Shares pursuant
to the intended method of distribution (a "Demand Registration") and (ii) after
the filing of an initial version of the registration statement, use all
reasonable efforts to cause such registration statement to be declared effective
under the Securities Act as promptly as practicable after the date of filing of
such registration statement. DoCoMo (including any transferee to which DoCoMo
shall have transferred registration rights as permitted hereunder) may not
exercise more than one Demand Request in any 7 1/2 month period. In the event
that a Demand Request is delivered to AT&T prior to the Spin-off, but the Demand
Shares are not registered by the time of consummation of the Spin-off, such
Demand Request shall be deemed withdrawn and shall not count for the purposes of
determining the number of Demand Registrations to which DoCoMo is entitled
hereunder.
(b) Anything in this Agreement to the contrary notwithstanding, the
Issuer shall be entitled to postpone and delay, for reasonable periods of time,
but in no event more than an aggregate of 90 days during any 12-month period (a
"Blackout Period"), the filing or effectiveness of any Demand Registration if
the Issuer shall determine that any such filing or the offering of any
Registrable Securities would (i) in the good faith judgment of the Board,
impede, delay or otherwise interfere with any pending or contemplated material
acquisition, corporate reorganization or other similar material transaction
involving the Issuer, including without limitation the Spin-off and the proposed
Exchange Offer, (ii) based upon advice from the Issuer's investment banker or
financial advisor, adversely affect any pending or contemplated financing,
offering or sale of any class of securities by the Issuer or the Spin-off or the
proposed Exchange Offer or (iii) in the good faith judgment of the Board,
require disclosure of material non-public information (other than information
relating to an event described in clauses (i) or (ii) above) which, if disclosed
at such time, would be harmful to the best interests of the Issuer and its
stockholders; provided, however, that the Issuer shall give written notice to
DoCoMo of its determination to postpone or delay the filing of any Demand
Registration; provided, further, that except in the case of a registration
related to the Spin-off or the Exchange Offer, in the event that the Issuer
proposes to register AT&T Wireless Stock, whether or not for sale for its own
account, during a Blackout Period, DoCoMo shall have the right to exercise its
rights under Section 7.2 of this Agreement with respect to such registration,
subject to the limitations contained in this Agreement on the exercise of such
rights; and provided further that AT&T or AT&T Wireless, as the case may be,
shall file such registration statement or post-effective amendment and otherwise
continue with such registration as soon as practicable thereafter. Upon notice
by the Issuer to DoCoMo of any such determination, DoCoMo shall keep the fact of
any such notice strictly confidential, and during any Blackout Period, promptly
halt any offer, sale, trading or Transfer by it of any AT&T Wireless Stock for
the duration of the Blackout Period set forth in such notice
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(or until such Blackout Period shall be earlier terminated in writing by the
Issuer) and promptly halt any use, publication, dissemination or distribution of
the Demand Registration, each prospectus included therein, and any amendment or
supplement thereto by it for the duration of the Blackout Period set forth in
such notice (or until such Blackout Period shall be earlier terminated in
writing by the Issuer) and, if so directed by the Issuer, will deliver to the
Issuer any copies then in its possession of the prospectus covering such
Registrable Securities.
(c) In connection with an underwritten offering, if the managing
underwriter or co-managing underwriter reasonably and in good faith shall have
advised the Issuer or DoCoMo that, in its opinion, the number of Demand Shares
subject to a Demand Request exceeds the number that can be sold in such
offering, the Issuer shall include in such registration the number of Demand
Shares that, in the opinion of such managing underwriter or underwriters, can be
sold in such offering; provided that if as a result of any reduction pursuant to
this paragraph (c) the aggregate Market Value of the Demand Shares to be so
included is less than $500 million or, with respect to a registration statement
which relates solely to Demand Shares issued pursuant to Section 4.3(h) hereof,
the lesser of (i) $300 million or (ii) the aggregate Market Value of that number
of Demand Shares equal to the number of Demand Shares which were originally
issued pursuant to Section 4.3(h) hereof ), DoCoMo may withdraw such Demand
Request with respect to all Demand Shares covered thereby and such registration
shall not count for the purposes of determining the number of Demand
Registrations to which DoCoMo is entitled under Section 7.1(a); provided,
further, that if pursuant to the Demand Request DoCoMo has given the Issuer the
right to select the managing underwriter (reasonably acceptable to DoCoMo) and
the managing underwriter so selected by the Issuer makes the determination that
results in the reduction pursuant to this paragraph (c) such that the aggregate
Market Value of the Demand Shares to be so included is less than $500 million
(or, with respect to a registration statement which relates solely to Demand
Shares issued pursuant to Section 4.3(h) hereof, the lesser of (i) $300 million
or (ii) the aggregate Market Value of that number of Demand Shares equal to the
number of Demand Shares which were originally issued pursuant to Section 4.3(h)
hereof), then DoCoMo may elect to proceed with the registration, and such
registration shall not count for the purposes of determining the number of
Demand Registrations to which DoCoMo is entitled under Section 7.1(a).
(d) In connection with any underwritten offering, the managing
underwriter or underwriters for such Demand Registration shall be selected by
DoCoMo; provided that such managing underwriter shall be a nationally recognized
investment banking firm and shall be reasonably acceptable to the Issuer and
provided, further that with respect to any registration effected in connection
with Section 4.3(e) hereof, AT&T or AT&T Wireless, as the case may be, will be
entitled to select the managing underwriter or underwriters. In addition to the
foregoing, the Issuer may, at its option, select a nationally recognized
investment banking firm reasonably acceptable to DoCoMo to act as a co-managing
underwriter. The Issuer shall have the right to approve the selection of the
counsel to any managing underwriter hereunder, which approval will not be
unreasonably withheld.
Section 7.2 Piggy-Back Registration. (a) If, at any time following
the expiration or termination of the transfer restrictions set forth in Section
6.1, for so long as DoCoMo owns Registrable Securities having an aggregate
Market Value of at least $1 billion or representing at least 2% of the Economic
Interest Percentage of AT&T Wireless (prior to the
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Spin-off) or of the outstanding voting securities of AT&T Wireless (after the
Spin-off), AT&T (prior to the Spin-off) or AT&T Wireless (after the Spin-off)
proposes to register any Equity Shares on its behalf or on behalf of any of its
stockholders, on a form and in a manner that would permit registration of the
Registrable Securities (other than in connection with dividend reinvestment
plans, rights offerings or a registration statement on Form S-4 or S-8 or any
similar successor form), the Issuer shall give reasonably prompt written notice
to DoCoMo of its intention to do so, which notice shall be given to DoCoMo not
less than 45 days prior to the contemplated filing date, if it is reasonably
practicable to do so at such time, and otherwise promptly after an initial
filing date is first contemplated, but in no event less than 12 Business Days
prior to the contemplated filing date for such registration statement. Upon the
written election of DoCoMo (a "Piggy-Back Request") given within 20 Business
Days following the receipt of written notice from the Issuer (but in no event
later than two Business Days prior to the contemplated filing date for such
registration statement indicated in such notice), which election shall specify
the number of the Registrable Securities intended to be disposed of by DoCoMo,
the Issuer shall include in such registration statement (a "Piggy-Back
Registration"), subject to the provisions of this Section 7.2, such number of
the Registrable Securities as shall be set forth in such Piggy-Back Request. No
registration effected under this Section 7.2 shall relieve the Issuer of its
obligations to effect a Demand Registration required under Section 7.1.
(b) In the event that, following the expiration or termination of
the transfer restrictions set forth in Section 6.1, AT&T (prior to the Spin-off)
or AT&T Wireless (after the Spin-off) proposes to register Equity Shares in
connection with an underwritten offering and a nationally recognized investment
banking firm selected by AT&T or AT&T Wireless, as the case may be, to act as
managing underwriter thereof reasonably and in good faith shall have advised the
Issuer, DoCoMo, or any other holder of Equity Shares intending to offer Equity
Shares in the offering (each, an "Other Holder") that, in its opinion, the
inclusion in the registration statement of some or all of the Registrable
Securities sought to be registered by DoCoMo would adversely affect the price or
success of the offering, the Issuer shall include in such registration statement
such number of Equity Shares as it was advised can be sold in such offering
without such an effect (the "Maximum Number") as follows and in the following
order of priority: (A) first, if such registration was initiated by AT&T or AT&T
Wireless, such number of shares of AT&T Wireless Stock as AT&T or AT&T Wireless
intended to be registered and sold, or, if such registration is on behalf of any
Other Holders, such number of Equity Shares as such Other Holders intended to be
registered and sold, and (B) second, if and to the extent that the number of
Equity Shares to be registered under clause (A) is less than the Maximum Number,
such number of Equity Shares as DoCoMo, AT&T or AT&T Wireless (if such
registration was not initiated by AT&T or AT&T Wireless) and any Other Holders
(or additional Other Holders) shall have intended to register that, when added
to the number of Equity Shares to be registered under clause (A), is less than
or equal to the Maximum Number, on a pro rata basis according to the total
number of Equity Shares intended to be registered by each such Person.
(c) The rights set forth in this Section 7.2 shall not apply to any
registration in connection with the Spin-off or the Exchange Offer.
Section 7.3 Limitations on Demand Registrations; Termination of
Registration Obligation. (a) Except to the extent DoCoMo is entitled to exercise
demand registration rights after the seventeen-month anniversary of the Closing
in accordance with the first sentence of
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Section 7.1(a), DoCoMo will not be entitled to exercise demand registration
rights under this Agreement at any time that it is prohibited from transferring
the relevant securities pursuant to the Transfer restrictions contained in
Section 6.1. Nothing in this Article VII shall affect or supersede any of the
Transfer restrictions set forth in Article VI hereof.
(b) Without limiting the rights of a transferee of Warrants as set
forth in the second sentence of Section 6.1(c), DoCoMo will be entitled to
exercise demand registration rights under this Agreement only if at the time of
exercise of any such demand DoCoMo (together with its wholly owned Subsidiaries)
owns Registrable Securities having an aggregate Market Value of at least $1
billion or representing at least 2% of the Economic Interest Percentage of AT&T
Wireless (prior to the Spin-off) or of the outstanding voting securities of AT&T
Wireless (after the Spin-off).
(c) Anything in this Agreement to the contrary notwithstanding, if
at any time AT&T, with respect to Current Wireless Tracking Stock, or AT&T
Wireless, with respect to AT&T Wireless Common Stock, shall obtain a written
opinion of legal counsel reasonably satisfactory to DoCoMo to the effect that
the Registrable Securities may be publicly offered for sale in the United States
by DoCoMo without restriction as to manner of sale and amount of securities sold
and without registration under the Securities Act, the Issuer shall no longer be
obligated to file or maintain a registration statement with respect to the
Registrable Securities pursuant to this Agreement, unless at a later date DoCoMo
delivers to the Issuer an opinion of counsel to DoCoMo, which opinion is
reasonably satisfactory in form and substance to counsel to the Issuer, that
registration is then required as a result of a change in applicable law.
Section 7.4 Registration Procedures. (a) In connection with each
registration statement prepared pursuant to this Article VII, and in accordance
with the intended method or methods of distribution of the Registrable
Securities as described in such registration statement, the Issuer, as soon as
reasonably practicable and to the extent practicable, shall:
(i) prepare and file with the SEC a registration statement on an
appropriate registration form of the SEC and use reasonable
efforts to cause such registration statement to become and
remain effective, which registration statement shall comply
as to form in all material respects with the requirements of
the applicable form and include all financial statements
required by such form to be filed therewith; provided that
before filing a registration statement or prospectus or any
amendments or supplements thereto, the Issuer shall furnish
to one counsel selected by DoCoMo, draft copies of all such
documents proposed to be filed at least 15 Business Days (in
the case of a Demand Registration) or 10 Business Days (in
the case of any other registration) prior to such filing (in
each case, only if it is reasonably practicable to do so at
such times, and otherwise promptly upon circulation of the
first draft of such documents circulated to the
underwriters, but in no event less than 10 days or five
days, respectively), which documents will be subject to the
reasonable review and comment of DoCoMo and its agents and
representatives and the underwriters, if any;
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(ii) furnish without charge to DoCoMo, and the underwriters, if
any, at least one conformed copy of the registration
statement and each post-effective amendment or supplement
thereto (including all schedules and exhibits but excluding
all documents incorporated or deemed incorporated therein by
reference, unless requested in writing by DoCoMo, or an
underwriter) and such number of copies of the registration
statement and each amendment or supplement thereto and the
summary, preliminary, final, amended or supplemented
prospectuses included in such registration statement as
DoCoMo or such underwriter may reasonably request in order
to facilitate the public sale or other disposition of the
Registrable Securities being sold by DoCoMo (the Issuer
hereby consents to the use in accordance with the U.S.
securities laws of such registration statement (or
post-effective amendment thereto) and each such prospectus
(or preliminary prospectus or supplement thereto) by DoCoMo
and the underwriters, if any, in connection with the
offering and sale of the Registrable Securities covered by
such registration statement or prospectus);
(iii) use all reasonable efforts to keep such registration
statement effective for the earlier of (A) 60 days and (B)
such time as all of the securities covered by the
registration statement have been disposed (the "Effective
Period"); prepare and file with the SEC such amendments,
post-effective amendments and supplements to the
registration statement and the prospectus as may be
necessary to maintain the effectiveness of the registration
for the Effective Period and to cause the prospectus (and
any amendments or supplements thereto) to be filed;
(iv) use all reasonable efforts to register or qualify the
Registrable Securities covered by such registration
statement under such other securities or "blue sky" laws of
such jurisdictions in the United States as are reasonably
necessary, keep such registrations or qualifications in
effect for so long as the registration statement remains in
effect, and do any and all other acts and things that may be
reasonably necessary to enable DoCoMo or any underwriter to
consummate the disposition of the Registrable Securities in
such jurisdictions; provided, however, that in no event
shall the Issuer be required: to qualify to do business as a
foreign corporation in any jurisdiction where it would not,
but for the requirements of this subparagraph (iv), be
required to be so qualified; to execute or file any general
consent to service of process under the laws of any
jurisdiction; to take any action that would subject it to
service of process in suits other than those arising out of
the offer and sale of the securities covered by the
registration statement; or to subject itself to taxation in
any jurisdiction where it would not otherwise be obligated
to do so, but for this subparagraph (iv);
(v) use all reasonable efforts to cause the Registrable
Securities to be registered with or approved by such other
governmental agencies or
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authorities as may be necessary to enable DoCoMo to
consummate the disposition of the Registrable Securities;
(vi) use all reasonable efforts to cause all Registrable
Securities covered by such registration statement to be
listed on the NYSE or on the principal securities exchange
on which the AT&T Wireless Stock of the same class as such
Registrable Securities is then listed, or if no similar
securities are then so listed, cause all such Registrable
Securities to be listed on a United States national
securities exchange or secure designation of each such
Registrable Security as a Nasdaq National Market "national
market system security" within the meaning of Rule 11Aa2-1
of the SEC or secure National Association of Securities
Dealers Automated Quotation authorization for such shares
and, without limiting the generality of the foregoing, use
all reasonable efforts to take such actions as may be
required by the Issuer as the issuer of such Registrable
Securities to facilitate the registration of at least two
market makers as such with respect to such shares with the
National Association of Securities Dealers, Inc.;
(vii) promptly notify DoCoMo and the managing underwriter or
underwriters, if any, after becoming aware thereof, (A) when
the registration statement or any related prospectus or any
amendment or supplement thereto has been filed, and, with
respect to the registration statement or any post-effective
amendment, when the same has become effective, (B) of any
request by the SEC or any United States state securities
authority for amendments or supplements to the registration
statement or the related prospectus or for additional
information, (C) of the issuance by the SEC of any stop
order suspending the effectiveness of the registration
statement or the initiation of any proceedings for that
purpose, (D) of the receipt by the Issuer of any
notification with respect to the suspension of the
qualification of the Registrable Securities for sale in any
jurisdiction or the initiation of any proceeding for such
purpose or (E) within the Effective Period of the happening
of any event or the existence of any fact that makes any
statement in the registration statement or any
post-effective amendment thereto, prospectus or any
amendment or supplement thereto, or any document
incorporated therein by reference untrue in any material
respect or that requires the making of any changes in the
registration statement or post-effective amendment thereto
or any prospectus or amendment or supplement thereto so that
they will not contain any untrue statement of a material
fact or omit to state any 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;
(viii) during the Effective Period, use all reasonable efforts to
obtain, as promptly as practicable, the withdrawal of any
order enjoining or suspending the use or effectiveness of
the registration statement or any post-effective amendment
thereto or the lifting of any suspension of the
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qualification of any of the Registrable Securities for sale
in any jurisdiction;
(ix) deliver promptly to DoCoMo and the managing underwriters, if
any, copies of all correspondence between the SEC and the
Issuer, its counsel or auditors and all memoranda relating
to discussions with the SEC or its staff with respect to the
registration statement and permit DoCoMo to do such
investigation, with respect to information contained in or
omitted from the registration statement as it deems
reasonably necessary for the purpose of conducting customary
due diligence with respect to the Issuer, provided any such
investigation shall not interfere unreasonably with the
Issuer's business;
(x) use all reasonable efforts to provide and cause to be
maintained a transfer agent and registrar for all such
Registrable Securities covered by such registration
statement not later than the effective date of such
registration statement;
(xi) cooperate with DoCoMo and the managing underwriter or
underwriters, if any, to facilitate the timely preparation
and delivery of certificates representing such Registrable
Securities to be sold under the registration statement in a
form eligible for deposit with the Depository Trust
Corporation not bearing any restrictive legends and not
subject to any stop transfer order with any transfer agent,
and cause such Registrable Securities to be issued in such
denominations and registered in such names as the managing
underwriters, if any, may request in writing or, if not an
underwritten offering, in accordance with the instructions
of DoCoMo, in each case at least two Business Days prior to
any sale of Registrable Securities;
(xii) in the case of an underwritten offering, use all reasonable
efforts to enter into an underwriting agreement customary in
form and scope for underwritten secondary offerings of the
nature contemplated by the applicable registration
statement;
(xiii) use all reasonable efforts to obtain an opinion from the
Issuer's counsel and a "cold comfort" letter from the
Issuer's independent public accountants (and, if necessary,
any other independent certified public accountants of any
Subsidiary of the Issuer or of any business acquired by the
Issuer for which financial statements and financial data is,
or is required to be, included in the registration
statement) in customary form and covering such matters as
are customarily covered by such opinions and "cold comfort"
letters in connection with an offering of the nature
contemplated by the applicable registration statement;
(xiv) not later than the effective date of the applicable
registration statement, provide a CUSIP number for all
Registrable Securities;
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(xv) provide reasonable assistance to the underwriters in the
marketing of such Registrable Securities, including by
making reasonably available appropriate members of its
management (but without unduly burdening such individuals or
the Issuer) as part of the road shows in support of such
offering (it being understood that the reasonable level of
such assistance will take into account the size of the
offering and other relevant factors); and
(xvi) use all reasonable efforts to provide to counsel to DoCoMo
and to the managing underwriters, if any, no later than the
time of filing of any document that is to be incorporated by
reference into the registration statement or prospectus
(after the initial filing of such registration statement),
copies of any such document.
(b) In the event that the Issuer would be required, pursuant to
Section 7.4(a)(vii)(E) above, to notify DoCoMo or the managing underwriter or
underwriters, if any, of the happening of any event specified therein, the
Issuer shall, subject to the provisions of Section 7.1(b) hereof, as promptly as
practicable, prepare and furnish to DoCoMo and to each such underwriter a
reasonable number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to purchasers of Registrable Securities that have been
registered pursuant to this Agreement, such prospectus shall not contain an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading. DoCoMo agrees
that, upon receipt of any notice from the Issuer pursuant to Section
7.4(a)(vii)(E) hereof, DoCoMo shall, and shall use all reasonable efforts to,
cause any sales or placement agent or agents for the Registrable Securities and
the underwriters, if any, to forthwith discontinue disposition of the
Registrable Securities until such Person shall have received copies of such
amended or supplemented prospectus and, if so directed by the Issuer, to destroy
or to deliver to the Issuer all copies, other than permanent file copies, then
in its possession of the prospectus (prior to such amendment or supplement)
covering such Registrable Securities as soon as practicable after DoCoMo's
receipt of such notice.
(c) DoCoMo shall furnish to the Issuer in writing such information
regarding DoCoMo and its intended method of distribution of the Registrable
Securities as the Issuer may from time to time reasonably request in writing, to
the extent that such information is required in order for the Issuer to comply
with its obligations under all applicable securities and other laws and to
ensure that the prospectus relating to such Registrable Securities conforms to
the applicable requirements of the Securities Act and the rules and regulations
thereunder. DoCoMo shall notify the Issuer as promptly as practicable of any
inaccuracy or change in information previously furnished by DoCoMo to the Issuer
or of the occurrence of any event, in either case as a result of which any
prospectus relating to the Registrable Securities contains or would contain an
untrue statement of a material fact or omits to state any 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 promptly
furnish to the Issuer any additional information required to correct and update
any previously furnished information or required so that such prospectus shall
not contain an untrue statement of a material fact or omit to state a material
fact
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required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(d) DoCoMo agrees not to effect any public sale or distribution of
any Registrable Securities, including any sale pursuant to Rule 144 under the
Securities Act, and not to effect any such public sale or distribution of any
other equity security of Issuer or of any security convertible into or
exchangeable or exercisable for any equity security of the Issuer (in each case,
other than as part of such underwritten public offering) during the 10 days
prior to, and during the 90 day period (or such longer period as DoCoMo agrees
with the underwriter of such offering) beginning on, the consummation of any
underwritten public offering of the Registrable Securities covered by a
registration statement referred to in Section 7.2 to the extent DoCoMo's
Registrable Securities are being sold thereunder.
(e) In the case of any registration under Section 7.1 pursuant to an
underwritten offering, or in the case of a registration under Section 7.2 if the
Issuer has entered into an underwriting agreement in connection therewith, all
shares of AT&T Wireless Stock to be included in such registration shall be
subject to the applicable underwriting agreement and no Person may participate
in such registration unless such Person agrees to sell such Person's securities
on the basis provided therein and completes and executes all questionnaires,
indemnities, underwriting agreements and other documents (other than powers of
attorney) that must be executed in connection therewith, and provides such other
information to the Issuer or the underwriter as may be reasonably requested to
register such Person's AT&T Wireless Stock.
Section 7.5 Registration Expenses. DoCoMo shall bear all agent fees
and commissions, underwriting discounts and commissions and fees and
disbursements of its counsel and accountants in connection with any registration
of any Registrable Securities pursuant to Section 7.1 or 7.2; provided that with
respect to any registration effected in connection with Section 4.3(e) hereof,
the Issuer will pay the reasonable fees and expenses of DoCoMo's counsel related
to such registration. The Issuer shall bear all other fees and expenses in
connection with any registration statement pursuant to Section 7.1 or 7.2,
including all registration and filing fees, all printing costs, and all fees and
expenses of counsel and accountants for the Issuer.
Section 7.6 Indemnification; Contribution. (a) The Issuer of the
securities to be registered in the relevant registration shall, and it hereby
agrees to, indemnify and hold harmless DoCoMo and its respective directors,
officers, employees and controlling Persons, if any, and each underwriter, its
partners, directors, officers, employees and controlling Persons, if any, in any
offering or sale of the Registrable Securities, against any losses, claims,
damages or liabilities, actions or proceedings (whether commenced or threatened)
in respect thereof and expenses (including reasonable fees of counsel)
(collectively, "Claims") to which each such indemnified party may become
subject, insofar as such Claims (including any amounts paid in settlement
effected with the consent of the Issuer as provided herein), or actions or
proceedings in respect thereof, arise out of or are based upon an untrue
statement or alleged untrue statement of a material fact contained in any
registration statement, or any preliminary or final prospectus contained
therein, or any amendment or supplement thereto, or any document incorporated by
reference therein, or arise out of or are based upon any 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 in which
they were made, not misleading, and the Issuer shall, and it
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hereby agrees to, reimburse periodically DoCoMo or any such underwriter for any
legal or other out-of-pocket expenses reasonably incurred by them in connection
with investigating or defending any such Claims; provided, however, that the
Issuer shall not be liable to any such Person in any such case to the extent
that any such Claims arise out of or are based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in such
registration statement, or preliminary or final prospectus, or amendment or
supplement thereto, (i) in reliance upon and in conformity with information
furnished to the Issuer by DoCoMo or any underwriter or representative of DoCoMo
expressly for use therein, or by DoCoMo's failure to furnish the Issuer, upon
request, with the information with respect to DoCoMo, or any underwriter or
representative of DoCoMo, or DoCoMo's intended method of distribution, that is
the subject of the untrue statement or omission or (ii) if the Issuer shall
sustain the burden of proving that DoCoMo or such underwriter sold securities to
the Person alleging such Claims without sending or giving, at or prior to the
written confirmation of such sale, a copy of the applicable prospectus
(excluding any documents incorporated by reference therein) or of the applicable
prospectus, as then amended or supplemented (excluding any documents
incorporated by reference therein), if the Issuer had previously furnished
copies thereof to DoCoMo or such underwriter, and such prospectus corrected such
untrue statement or alleged untrue statement or omission or alleged omission
made in such registration statement.
(b) DoCoMo shall, and hereby agrees to (i) indemnify and hold
harmless AT&T, with respect to the registration of Current Wireless Tracking
Stock, or AT&T Wireless, with respect to the registration of AT&T Wireless
Common Stock, its directors, officers, employees and controlling Persons, if
any, and each underwriter, its partners, officers, directors, employees and
controlling Persons, if any, in any offering or sale of Registrable Securities,
against any Claims to which each such indemnified party may become subject,
insofar as such Claims (including any amounts paid in settlement effected with
the consent of DoCoMo as provided herein), or actions or proceedings in respect
thereof, arise out of or are based upon an untrue statement or alleged untrue
statement of a material fact contained in such registration statement, or any
preliminary or final prospectus contained therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, in each case only to the extent that such untrue
statement or alleged untrue statement or omission or alleged omission was made
in reliance upon and in conformity with written information furnished to AT&T or
AT&T Wireless, as the case may be, by DoCoMo expressly for use therein, and (ii)
periodically reimburse AT&T or AT&T Wireless, as the case may be, for any legal
or other out-of-pocket expenses reasonably incurred by AT&T or AT&T Wireless, as
the case may be, in connection with investigating or defending any such Claim.
(c) Promptly after receipt by an indemnified party under Section
7.6(a) or Section 7.6(b) of written notice of the commencement of any action or
proceeding for which indemnification under Section 7.6(a) or Section 7.6(b) may
be requested, such indemnified party shall notify such indemnifying party in
writing of the commencement of such action or proceeding; but the omission so to
notify the indemnifying party shall not relieve it from any liability which it
may have to any indemnified party in respect of such action or proceeding
hereunder unless the indemnifying party was materially prejudiced by such
failure of the indemnified party to give such notice, and in no event shall such
omission relieve the
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indemnifying party from any other liability it may have to such indemnified
party. In case any such action or proceeding shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and,
to the extent that it shall determine, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such indemnified party
for any legal or any other expenses subsequently incurred by such indemnified
party in connection with the defense thereof other than reasonable costs of
investigation; provided, however, that (i) if the indemnifying party fails to
take reasonable steps necessary to defend diligently the action or proceeding
within 20 days after receiving notice from such indemnified party that the
indemnified party believes it has failed to do so; (ii) if such indemnified
party who is a defendant in any action or proceeding that is also brought
against the indemnifying party reasonably shall have concluded that there may be
one or more legal defenses available to such indemnified party that are not
available to the indemnifying party; or (iii) if representation of both parties
by the same counsel is otherwise inappropriate under applicable standards of
professional conduct, then, in any such case, the indemnified party shall have
the right to assume or continue its own defense as set forth above (but with no
more than one firm of counsel for all indemnified parties in each jurisdiction)
and the indemnifying party shall be liable for any expenses therefor (including,
without limitation, any such reasonable counsel's fees). If the indemnifying
party is not entitled to, or elects not to, assume the defense of a claim, it
will not be obligated to pay the fees and expenses of more than one counsel (and
one local counsel per jurisdiction) for each indemnified party with respect to
such claim. The indemnifying party will not be subject to any liability for any
settlement made without its consent, which consent shall not be unreasonably
withheld or delayed. No indemnifying party shall, without the prior written
consent of the indemnified party, compromise or consent to entry of any judgment
or enter into any settlement agreement with respect to any action or proceeding
in respect of which indemnification is sought under Section 7.6(a) or Section
7.6(b) (whether or not the indemnified party is an actual or potential party
thereto), unless such compromise, consent or settlement includes an
unconditional release of the indemnified party from all liability in respect of
such claim or litigation, does not subject the indemnified party to any material
injunctive relief or other material equitable remedy and does not include a
statement or admission of fault, culpability or a failure to act, by or on
behalf of the indemnified party.
(d) DoCoMo, AT&T and AT&T Wireless agree that if, for any reason,
the indemnification provisions contemplated by Sections 7.6(a) or 7.6(b) hereof
are unavailable to or are insufficient to hold harmless an indemnified party in
respect of any Claims referred to therein, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a result
of such Claims in such proportion as is appropriate to reflect the relative
fault of, the indemnifying party, on the one hand, and the indemnified party, on
the other hand, with respect to such offering of securities. The relative fault
of such indemnifying party and indemnified party shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact
relates to information supplied by such indemnifying party or by such
indemnified party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
If, however, the allocation in the second preceding sentence is not permitted by
applicable law, then each indemnifying party shall
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contribute to the amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative faults, but also
the relative benefits of the indemnifying party and the indemnified party, as
well as any other relevant equitable considerations. The parties hereto agree
that it would not be just and equitable if contributions pursuant to this
Section 7.6(d) were to be determined by pro rata allocation or by any other
method of allocation that does not take into account the equitable
considerations referred to in the preceding sentences of this Section 7.6(d).
The amount paid or payable by an indemnified party as a result of the Claims
referred to above shall be deemed to include (subject to the limitations set
forth in Section 7.6(c) hereof) any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action, proceeding or claim. No Person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act or
any successor provision thereof) shall be entitled to contribution from any
Person who was not guilty of such fraudulent misrepresentation.
ARTICLE VIII
PREEMPTIVE RIGHTS
Section 8.1 Preemptive Rights. (a) Subject to Section 8.2, as soon
as practicable after AT&T decides to issue any additional Equity Shares (other
than any Equity Shares representing all or any portion of AT&T's Retained
Wireless Interest), prior to the consummation of the Spin-off, or AT&T Wireless
decides to issue any Equity Shares after the consummation of the Spin-off
(collectively, the "Additional Securities") (other than to a wholly owned
Subsidiary of the Issuer and exclusive of any Equity Shares issued upon exercise
of the Warrants), but in any event at least ten Business Days prior to issuing
such Additional Securities to any Person other than DoCoMo or any of its
Subsidiaries, the Issuer shall notify DoCoMo by written notice of such proposed
issuance (which notice shall specify, to the extent practicable, the purchase
price, if any, for, and the terms and conditions of, such Additional Securities,
including whether or not any purchaser of such Additional Securities will have
registration rights with respect to such Additional Securities) and shall offer
to sell to DoCoMo and/or its designated wholly owned Subsidiaries such
Additional Securities as may be designated by DoCoMo upon the terms and
conditions set forth in the notice and at the Purchase Price as provided in
Section 8.1(e); provided that, with respect to any issuances of Additional
Securities pursuant to employee, officer or director benefit plans or
arrangements ("Employee Benefit Plans"), such notice and offer shall only be
required within 10 Business Days of each March 31 and September 30 and shall be
made in respect of all such issuances made during the six month period ending on
such March 31 or September 30 (except with respect to the first such notice
after the Closing Date, which shall relate only to issuance made during the
period from the Closing Date through such March 31, 2001, or September 30 2001,
as applicable DoCoMo's right to purchase Additional Securities in accordance
with Sections 8.1(c) and (d) and this Article VIII are referred to herein as
"Preemptive Rights." The foregoing notwithstanding, DoCoMo shall have no
preemptive right to acquire Additional Securities that (x) are issued to holders
of AT&T Wireless Common Stock on a pro rata basis (whether in the form of a
dividend distribution or otherwise), (y) are issued or sold in respect of the
exercise of any purchase or similar right where such right was originally
offered or distributed to holders of AT&T Wireless Common Stock on a pro rata
basis or (z) are issued or sold upon the exercise of rights under
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AT&T Wireless' preferred share purchase rights plan or any successor plan
thereto. In the case of a proposed public offering as to which the price is not
known as of the time notice is given, the notice shall specify the range of
expected prices as determined in good faith by the Issuer. The Preemptive Rights
shall not be triggered by issuances of securities upon exchange or conversion of
previously outstanding securities (including, without limitation, issuances in
connection with any rights plan but not including issuances in connection with
the exercise of options or other rights granted to employees, officers,
directors or consultants of the Issuer) or by pro rata distributions to
shareholders (including without limitation stock dividends and stock splits);
provided that DoCoMo may exercise its Preemptive Rights hereunder upon the
conversion of convertible securities that become outstanding after the Closing
and that, because of the nature of the security, the number of shares of common
stock into which such security is convertible was not calculable and therefore
DoCoMo could not exercise its Preemptive Rights with respect thereto. For the
avoidance of doubt, the Preemptive Rights shall not apply to the exchange of
AT&T Wireless Common Stock for Current Wireless Tracking Stock or New Tracking
Stock, or the distribution of AT&T Wireless Common Stock to holders of common
stock of AT&T, in each case pursuant to the Spin-off, or to securities issued in
the Exchange Offer.
(b) The Preemptive Rights may be exercised, in whole or in part, by
DoCoMo by its acceptance in writing of an offer referred to in Section 8.1(a)
within 30 days of receipt of the notice given to DoCoMo. If DoCoMo wishes to
subscribe for a number of Additional Securities less than the number to which it
is entitled under this section, DoCoMo may do so and shall, in the notice of
exercise of the offer, specify the number of Additional Securities that DoCoMo
wishes to purchase. If DoCoMo exercises its preemptive rights with respect to
the grant of options or other rights to acquire AT&T Wireless Common Stock
issued pursuant to Employee Benefit Plans, such exercise shall be deemed an
election to acquire shares of AT&T Wireless Common Stock . To the extent that
DoCoMo receives notice in connection with the grant of stock options or other
rights to acquire AT&T Wireless Common Stock issued pursuant to Employee Benefit
Plans, DoCoMo shall have no preemptive rights with respect to the issuance of
AT&T Wireless Common Stock if and when such options or rights are exercised. The
closing of the purchase and sale of Additional Securities pursuant to any
exercise of Preemptive Rights shall occur as promptly as practicable following
DoCoMo's notice of exercise, provided that the closing shall be subject to and
shall occur no earlier than concurrently with the consummation of the issuance
giving rise to the Preemptive Rights. The closing shall also be subject to the
receipt of any necessary regulatory approvals, the expiration of any required
waiting periods and the absence of any legal prohibition on such closing, and
the Issuer and DoCoMo will use their reasonable best efforts to satisfy the
conditions set forth in this sentence, provided that the Issuer will have no
obligation to DoCoMo to consummate or to use any efforts to consummate, the
issuance giving rise to the Preemptive Rights.
(c) (i) With respect to Additional Securities that are Equity Common
Shares, if the Preemptive Rights are exercised and if DoCoMo's Economic Interest
Percentage prior to the issuance of Additional Securities is at least 12%, the
Issuer shall sell to DoCoMo and/or its wholly owned Subsidiaries as may be
designated by DoCoMo all or any portion specified by DoCoMo of an amount of such
Additional Securities such that, after giving effect to the proposed issuance
(including the issuance to DoCoMo pursuant to the Preemptive Rights and
including any related issuance resulting from the exercise of preemptive rights
by any unrelated
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Person with respect to the same issuance that gave rise to the exercise of
Preemptive Rights by DoCoMo), but without considering (either as owned by DoCoMo
or as outstanding) any Equity Common Shares acquired by DoCoMo upon exercise of
the Warrants, DoCoMo's Economic Interest Percentage would equal 16% (which
amount shall constitute the "Preemptive Share Amount" for purposes of any
exercise of Preemptive Rights to which this paragraph (c) (i) applies). If, at
the time of the determination of any Preemptive Share Amount, any other Person
has preemptive or other equity purchase rights similar to the Preemptive Rights,
such Preemptive Share Amount shall be recalculated to take into account the
amount of Equity Common Shares such Persons have committed to purchase, rounding
up such Preemptive Share Amount to the nearest whole Equity Common Share.
(ii) With respect to Additional Securities that are Equity
Common Shares, if the Preemptive Rights are exercised and if DoCoMo's Economic
Interest Percentage prior to the issuance of Additional Securities is less than
12%, the Issuer shall sell to DoCoMo and/or its wholly owned Subsidiaries as may
be designated by DoCoMo all or any portion specified by DoCoMo of an amount of
such Additional Securities such that, after giving effect to the proposed
issuance (including the issuance to DoCoMo pursuant to the Preemptive Rights and
including any related issuance resulting from the exercise of preemptive rights
by any unrelated Person with respect to the same issuance that gave rise to the
exercise of Preemptive Rights by DoCoMo), DoCoMo's Economic Interest Percentage
would equal its Economic Interest Percentage immediately prior to such issuance
(which amount shall constitute the "Preemptive Share Amount" for purposes of any
exercise of Preemptive Rights to which this paragraph (c)(ii) applies). If, at
the time of the determination of any Preemptive Share Amount, any other Person
has preemptive or other equity purchase rights similar to the Preemptive Rights,
such Preemptive Share Amount shall be recalculated to take into account the
amount of Equity Common Shares such Persons have committed to purchase, rounding
up such Preemptive Share Amount to the nearest whole Equity Common Share.
(d) With respect to Additional Securities that are Equity Other
Shares, the Issuer shall sell to DoCoMo and/or its wholly owned Subsidiaries as
may be designated by DoCoMo all or any portion specified by DoCoMo of an amount
of such Additional Securities equal to DoCoMo's Economic Interest Percentage at
such time (which amount shall constitute the "Preemptive Share Amount" for
purposes of any exercise of Preemptive Rights to which this paragraph (d)
applies). If, at the time of the determination of any Preemptive Share Amount,
any other Person has preemptive or other equity purchase rights similar to
preemptive rights, such Preemptive Share Amount shall be recalculated to take
into account the amount of Equity Other Shares such Persons have committed to
purchase, rounding up such Preemptive Share Amount to the nearest whole Equity
Other Share.
(e) The "Purchase Price" for the Additional Securities to be issued
pursuant to the exercise of Preemptive Rights shall be payable only in cash
(unless otherwise mutually agreed by the Issuer and DoCoMo) and, except as
otherwise set forth below shall equal per Additional Security the per security
issuance price for the Additional Securities giving rise to such Preemptive
Right. In the case of exercise of Preemptive Rights resulting from issuances
pursuant to employee, officer or director benefit plans or arrangements, the
Purchase Price shall be based on the average closing price for the shares of
Current Wireless Tracking Stock or AT&T Wireless Common Stock, as the case may
be, for the 30-trading day period ending on the
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relevant March 31 or September 30, as the case may be. In the case of the
exercise of Preemptive Rights under Section 8.1(c)(i) for Additional Securities
in excess of the number of Additional Securities necessary to maintain DoCoMo's
Economic Interest Percentage as in effect immediately prior to the applicable
issuance (the "Excess Securities"), the Purchase Price for the Excess Securities
per Excess Security shall be the greater of (i) the per security issuance price
for the Additional Securities giving rise to such exercise of Preemptive Right
and (ii) the per security issuance price for the most recent preceding issuance
with respect to which DoCoMo did not exercise its full Preemptive Rights and
that previously diluted DoCoMo's Economic Interest Percentage (with the
reference price under this clause (ii) being the issuance price in the first
such immediately preceding issuance with respect to a number of Additional
Securities up to the number that DoCoMo was entitled to but did not purchase
pursuant to exercise of its Preemptive Rights with respect to such issuance and,
to the extent such number is less than the number of Excess Securities being
purchased pursuant to Section 8.1(c)(i), then repeating the same procedure with
respect to the next immediately preceding issuance or issuances); provided that,
upon DoCoMo exercising Preemptive Rights for Excess Securities pursuant to
Section 8.1(c)(i) in an amount sufficient to make up all or part of the dilution
resulting from a prior issuance or issuances as to which DoCoMo did not exercise
its full Preemptive Rights, DoCoMo shall be deemed to have exercised Preemptive
Rights in full or in such part, as applicable, with respect to such prior
issuance for purposes of any subsequent application of the reference price in
the foregoing clause (ii); provided, further, that in the event DoCoMo attempts
to exercise but is unable to exercise any Preemptive Rights by virtue of Section
8.2(b), any subsequent purchase of Excess Securities shall be applied, first,
against the number of Additional Securities that DoCoMo was prevented from
purchasing pursuant to Section 8.2(b), and the Purchase Price for such Excess
Securities, up to such number, shall be determined only by reference to clause
(i) of this sentence and without regard to clause (ii) of this sentence. The
issuance price with respect to any issuance of Additional Securities shall be
the actual price paid by the other Person or Persons for such Additional
Securities (without deducting any costs or expenses of the Issuer in connection
therewith). In the case of any issuance of Additional Securities other than
solely for cash, the Issuer and DoCoMo shall in good faith seek to agree upon
the value of the non-cash consideration; provided that the value of any publicly
traded securities shall be deemed to be the Market Value of such securities as
of the date of the consummation of such issuance. If the Issuer and DoCoMo fail
to agree on such value during the 30-day period contemplated by the first
sentence of Section 8.1(b), then the Issuer will refer the items in dispute to a
nationally recognized investment banking firm that is selected by the Board and
reasonably acceptable to DoCoMo and that shall make a final and binding
determination of the fair market value of such items within 10 days. If such a
determination is required, the deadline for DoCoMo's exercise of its Preemptive
Rights with respect to such issuance pursuant to Section 8.1(b) shall be
extended until the fifth Business Day following the date of such determination.
Whichever of the Issuer or DoCoMo whose last estimate differed the most from
that finally decided by the investment banking firm shall be responsible for and
pay all of the fees and expenses of such investment banking firm. All
determinations made by such investment banking firm shall be final and binding
on the Issuer and DoCoMo.
Section 8.2 Limitation of Preemptive Rights. (a) Upon an Investor
Rights Termination Event, DoCoMo's Preemptive Rights shall terminate and cease
immediately including with respect to any pending but uncompleted exercises.
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(b) Anything herein to the contrary notwithstanding, DoCoMo shall
not be entitled to exercise Preemptive Rights if and to the extent AT&T or AT&T
Wireless reasonably determines that the exercise of such Preemptive Rights
would, taking into account all relevant facts in existence at the time of the
issuance to DoCoMo, create a substantial risk that such issuance would cause the
Spin-off to be taxable to AT&T or its shareholders under Section 355(e) of the
Internal Revenue Code of 1986, as amended.
ARTICLE IX
EFFECTIVENESS AND TERMINATION
Section 9.1 Effectiveness. This Agreement shall take effect
immediately upon the Closing and shall remain in effect until it is terminated
pursuant to Section 9.2 hereof.
Section 9.2 Termination. Other than the termination provisions
applicable to particular Sections of this Agreement that are specifically
provided elsewhere in this Agreement, this Agreement shall terminate (a) upon
the mutual written agreement of AT&T, AT&T Wireless and DoCoMo or (b) at such
time as DoCoMo no longer holds any Equity Shares.
Section 9.3 Partial Termination. Effective immediately on
consummation of the Spin-off, (i) except (x) for AT&T's guarantee of a portion
of AT&T Wireless's obligations as specified in Section 4.3(f) hereof and (y)
with respect to liabilities arising from any breach of this Agreement prior to
the consummation of the Spin-off, AT&T shall be released and terminated as a
party hereto and shall have no further liability or obligation hereunder to any
party hereto or any other Person hereby, and this Agreement shall no longer
represent an agreement of AT&T enforceable against AT&T by any other Person, and
(ii) except (x) with respect to liabilities arising from any breach of this
Agreement prior to the consummation of the Spin-off, (y) as specified in
Sections 3.6 and 3.7 and (z) for obligations or liabilities to AT&T relating to
any obligations or liabilities retained by AT&T pursuant to Section 4.3(f)
arising hereunder as a result of the Spin-off, no party hereto shall have any
further liability or obligation hereunder to AT&T.
ARTICLE X
NON-COMPETITION; CONFIDENTIALITY
Section 10.1 Non-Competition Restrictions. (a) Each of AT&T and AT&T
Wireless, on the one hand, and DoCoMo, on the other, agrees with respect to
itself and with respect to each of its Subsidiaries, not to own or operate, or
acquire or increase, except pursuant to existing preemptive rights, any equity
interest in any Person that owns (or has entered an agreement to acquire) or
operates (or whose Affiliate owns (or has entered an agreement to acquire) or
operates) a Mobile Telecommunications Infrastructure (as defined below) in the
other party's Home Territory.
(b) Each of AT&T and AT&T Wireless, on the one hand, and DoCoMo, on
the other, agrees with respect to itself and with respect to each of its
Subsidiaries, that it will not be a Reseller (as defined below) in the other
party's Home Territory nor will it acquire or
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increase, except pursuant to existing preemptive rights, any equity interest in
any Person that is, or has entered an agreement to acquire (or whose Affiliate
is (or has entered an agreement to acquire)), a Reseller in the other party's
Home Territory.
(c) Each of AT&T and AT&T Wireless, on the one hand, and DoCoMo, on
the other, agrees with respect to itself, and with respect to each of its
Subsidiaries, not to provide any, or provide rights to any, Mobile Multimedia
Contribution (as defined below) to any Person that is (or whose Affiliate is)
engaged in any of the businesses described in Sections 10.1(a) or (b) in the
other party's Home Territory, except that DoCoMo may provide such contribution
outside of AT&T Wireless's Home Territory if the recipient thereof is bound by
non-exportation restrictions with respect to AT&T Wireless's Home Territory
similar to those imposed upon AT&T Wireless herein.
(d) Nothing in Sections 10.1(a) or (b) shall be construed to
prohibit any party from entering into customary commercial roaming agreements.
(e) Without limiting Sections 10.1(a), (b) or (c), for a period of
48 months from the Closing Date, each of AT&T and AT&T Wireless, on the one
hand, and DoCoMo, on the other, agrees with respect to itself, and with respect
to each of its Subsidiaries, not to provide Mobile Multimedia Contribution to
any Person that engages or intends, to the party's actual knowledge, to engage
(or whose Affiliate engages or intends, to the party's actual knowledge, to
engage) in the other party's Home Territory in the business of developing or
maintaining a Mobile Portal (as defined below). After the expiration of the
48-month period, DoCoMo and AT&T Wireless will discuss in good faith appropriate
revisions to the restrictions on competition or the termination of such
restrictions with respect to Mobile Portals in light of the then current state
of the mobile telecommunications markets. Unless an alternate agreement is
reached, after such 48-month period, DoCoMo may take any of the actions
otherwise prohibited under the first sentence of this Section 10.1(e), but only
in accordance with the Release Conditions (as defined below). After such
48-month period, AT&T and AT&T Wireless shall no longer be subject to the
restrictions contained in this Section 10.1(e).
Section 10.2 Definitions. (a) A Person "Competes" if (i) it (and/or
its Affiliate) offers products and/or services that are substantially
substitutable with products and/or services of the other party's products and/or
services by customers (including resellers) located in substantially similar
geographic locales in each party's Home Territory such that there is a
reasonable likelihood of customers (including resellers) substituting the
competing product or service, and (ii) the competing products and services,
taken together, compete for a substantial portion of the customers (including
resellers) of AT&T Wireless, the MMS or DoCoMo, as the case may be, in the
geographic locale where such competition occurs.
(b) "Mobile Multimedia Contribution" means the provision of the
support, advice, services, activities, and technology included in Section 5.3(b)
hereof (including Schedule 5.3(b) hereto) by way of any joint venture agreement,
technology and know-how transfer agreement, services and support agreement that
has been reduced to writing or any similar type of written agreement or in any
other manner at a level that would not be considered to be de minimis.
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(c) "Mobile Portal" means the provision of portal functionality by
aggregating content or providing content that includes third party content to be
supplied to consumers through a cell phone browser or other wireless access
device. Without limiting the foregoing, it is agreed and understood that the
portal functionality provided or enabled by the i-mode services is included
within the definition of Mobile Portal.
(d) "Mobile Telecommunications Infrastructure" means a wireless
mobile radio network to provide digital or analog voice and data transmission
services to mobile communications terminals anywhere in the relevant Home
Territory, unless such network does not have more than 100,000 subscribers and
does not, or when operational would not, cover more than 10 million POPs.
(e) An action described herein as being permitted in accordance with
the "Release Conditions" will be permitted only: (i) if the written consent of
AT&T Wireless has been obtained, or (ii) if prior to taking such action all
DoCoMo representatives on the AT&T board, but not the AT&T Wireless board, and
all other DoCoMo representatives or designees appointed to the management or any
governance body or committee of the MMS (including under Section 5.4 hereof)
shall have resigned, and in each case DoCoMo shall have relinquished its right
to nominate, appoint or designate any such directors, representatives or
designees in the future. In the case of any such resignations, DoCoMo shall be
released from any and all of its obligations and duties relating to any
management, directorships or membership or participation in any such governance
body.
(f) "Reseller" is an Person that (i) provides mobile
telecommunication services without owning its own infrastructure but by using a
third party's Mobile Telecommunications Infrastructure, (ii) has at least
100,000 subscribers and (iii) serves, or has the right or licenses to offer
services in, an area or areas covering at least 10 million POPs.
Section 10.3. Duration of and Limitations on Restrictions. (a) With
respect to Sections 10.1(a), (b) and (c), DoCoMo shall be subject to the
restrictions and obligations set forth therein unless and until (i) an Investor
Rights Termination Event shall have occurred as a result of DoCoMo's exercise of
the Technology Default Right or the No Spin-off Right or a Permitted Redemption,
provided that for purposes of this clause (i) only, the reference to 60 days
appearing in the definition of Investor Rights Termination Event shall be deemed
to be a reference to 90 days, or (ii) an Investor Rights Termination Event shall
have occurred other than as a result of an event covered by clause (i) of this
sentence, provided that for purposes of this clause (ii) only, the reference to
60 days appearing in the definition of Investor Rights Termination Event shall
be deemed to be a reference to one year.
(b) AT&T shall be subject to the restrictions and obligations set
forth in Section 10.1 until the earlier of the Spin-off and the first date that
DoCoMo exercises the No-Spin-off Right.
(c) AT&T Wireless shall be subject to the restrictions and
obligations set forth in Section 10.1 until the earlier of (i) the date DoCoMo
first ceases to be subject to the restrictions and obligations set forth in
Sections 10.1(a), (b) or (c), and (ii) the date DoCoMo first
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relinquishes its board and management rights in accordance with clause (ii) of
the definition of Release Conditions.
(d) AT&T's and AT&T Wireless's current investment in Japan Telecom
Co., Ltd shall not be subject to the Section 10.1 restrictions.
(e) Nothing in the restrictions above will prohibit either party
from making any investment if the investing party (i) does not hold a beneficial
interest in the target entity in excess of 5% of any equity or management class
of shares of such target entity and (ii) does not exercise control of, or
management authority in, or provide any Mobile Multimedia Contribution to, such
target entity.
(f) If AT&T or AT&T Wireless, on the one hand, or DoCoMo, on the
other, materially breaches any of its obligations under this Article X and fails
to cure such breach within 30 days of receiving notice from the other party or
parties, than such other party or parties shall immediately be released from all
of the restrictions hereunder.
Section 10.4. Non-Disclosure Commitment. (a) AT&T Wireless and
DoCoMo each hereby agree to keep confidential and protect each other's
Proprietary Information. This will include ensuring that directors, secondees
and any other employees with access to Proprietary Information of the other
party remain bound by strict nondisclosure policies and procedures consistent
with this Section 10.4, and only utilize Proprietary Information for purposes
related to the purposes for which such information was disclosed. In addition,
each party further agrees that in no case shall any Proprietary Information of
the other party be transferred in any form (including orally and visually)
outside of the respective Home Territories. "Proprietary Information" shall mean
any and all information of either party of a confidential nature, including
without limitation non-public information relating to the disclosing party's
technology, technical data, trade secrets, know-how, customers, business plans,
marketing activities, financial data and other business affairs that is
disclosed by one party to the other party or that is otherwise learned by a
party in the course of its discussions or business dealings with, or its
physical or electronic access to the premises of, the other party that, if
disclosed in written form, is conspicuously marked at the time of initial
disclosure, or promptly thereafter, as the disclosing party's Proprietary
Information, and, if in oral or visual form, is promptly followed by a writing
delivered to the receiving party designating the information considered
confidential; provided, however, that "Proprietary Information" does not include
any information that: (i) was in possession of or known to the receiving party,
without any obligation of confidentiality to the disclosing party, prior to
receiving it from the disclosing party; (ii) is, or subsequently becomes,
publicly available without breach of these confidentiality provisions; (iii) is
or becomes known or available to the receiving party from a source other than
the disclosing party that, to the receiving party's knowledge, is not prohibited
from disclosing such Proprietary Information to the receiving party by a
contractual, legal or fiduciary obligation owed by such other third party to the
disclosing party; (iv) is developed by or for the receiving party without use of
the Proprietary Information; (v) is or becomes available to the receiving party
by lawful inspection or analysis of products or services offered for sale; or
(vi) is disclosed to the receiving party by the disclosing party after receiving
written notification from the receiving party that does not desire to receive
any further Proprietary Information.
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(b) Section 10.4(a) notwithstanding, the terms of confidentiality
hereunder shall not be construed to in any way limit either party's right to
independently develop or acquire products, services or other information without
use of the other party's Proprietary Information. Each party acknowledges that
the other party has developed and intends to continue to develop, both
internally and with the assistance of third parties, products, services and
other information related to Mobile Portals and data networks, including
products, services and other information that may be similar to Proprietary
Information disclosed by the other party. Accordingly, nothing herein, or any
other agreement between the parties, will be construed as a representation or
agreement that the receiving party will not develop or have developed for it (or
deploy) products, services, concepts, systems or techniques that are similar to
or compete with the products, concepts, systems or techniques contemplated by or
embodied in the Proprietary Information of the other party, provided that the
receiving party does not violate any of its obligations under this Section 10.4
in connection with such development. Further, any other provision hereof or
agreement between the parties notwithstanding, both parties shall be free to use
for any lawful purpose the residuals resulting from access to or work with any
Proprietary Information, provided that such party shall maintain the
confidentiality of the Proprietary Information as provided herein. The term
"residuals" means information in non-tangible form, which may be retained by
persons who have had access to the Proprietary Information, including ideas,
concepts, know-how or techniques contained therein so long as such "residuals"
are not themselves substantially identical to the Proprietary Information on
which any such residual is based. Neither party shall have any obligation to
limit or restrict the assignment of such persons or to make payment of any kind
to the other party for any work resulting from the use of residuals.
(c) In the event that the receiving party is requested or becomes
legally compelled to disclose any Proprietary Information, then before
substantively responding to any such request or requirement, the receiving party
will provide the disclosing party with prompt written notice of any such request
or requirement so that the disclosing party may seek a protective order or other
appropriate remedy, or both, or waive compliance with the provisions of this
Section 10.4 or other appropriate remedy, or if the disclosing party so directs,
the receiving party will exercise its own reasonable best efforts to assist the
disclosing party in obtaining a protective order or other appropriate remedy at
the disclosing party's expense. If, failing the entry of a protective order or
other appropriate remedy or the receipt of a waiver hereunder, disclosure of any
Proprietary Information is, in the opinion of the receiving party's counsel,
required, the receiving party may furnish only that portion of the Proprietary
Information which is in the opinion of the receiving party's counsel legally
required to be furnished. In any event, the receiving party will cooperate fully
with any action by the disclosing party to obtain an appropriate protective
order or other reliable assurance that confidential treatment will be accorded
the Proprietary Information.
(d) The obligations and covenants contained in this Section 10.4
shall be subject to and performed in accordance with any applicable U.S. and
Japanese laws and regulations.
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ARTICLE XI
MISCELLANEOUS
Section 11.1 Injunctive Relief. Each party hereto acknowledges that
it would be impossible to determine the amount of damages that would result from
any breach of any of the provisions of this Agreement and that the remedy at law
for any breach, or threatened breach, of any of such provisions would likely be
inadequate and, accordingly, agrees that each other party shall, in addition to
any other rights or remedies which it may have, be entitled to seek such
equitable and injunctive relief as may be available from any court of competent
jurisdiction to compel specific performance of, or restrain any party from
violating, any of such provisions. In connection with any action or proceeding
for injunctive relief, each party hereto hereby waives the claim or defense that
a remedy at law alone is adequate and agrees, to the maximum extent permitted by
law, to have each provision of this Agreement specifically enforced against it,
without the necessity of posting bond or other security against it, and consents
to the entry of injunctive relief against it enjoining or restraining any breach
or threatened breach of such provisions of this Agreement.
Section 11.2 Successors and Assigns. Except as and to the extent set
forth in Section 6.1(a) or Section 6.1(c), neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned by any of the
parties hereto, in whole or in part (whether by operation of law or otherwise),
without the prior written consent of each of the other parties. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit of
and be enforceable by the parties and their respective successors and assigns.
Any attempted assignment in violation of this Section 11.2 shall be void.
Section 11.3 Amendments; Waiver. This Agreement may be amended only
by an agreement in writing executed by DoCoMo (on behalf of itself and all of
its Designees), AT&T and AT&T Wireless; provided that, after the Spin-off, this
Agreement may be amended by an agreement in writing executed by AT&T Wireless
and DoCoMo (on behalf of itself and all of its Designees) to the extent (but
only to the extent) such amendment does not affect any rights or obligations of
AT&T. Any party may waive in whole or in part any benefit or right provided to
it under this Agreement, such waiver being effective only if contained in a
writing executed by the waiving party. No failure by any party to insist upon
the strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon breach thereof
shall constitute a waiver of any such breach or of any other covenant, duty,
agreement or condition, nor shall any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
Section 11.4 Notices. Except as otherwise provided in this
Agreement, all notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, or if mailed, five (5) Business Days after
mailing (three (3) Business Days in the case of express mail or overnight
counter service), or when received by facsimile transmission if promptly
confirmed, as follows:
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If to DoCoMo:
Xxxxx Xxxx Xxxxx -- 00xx Xxxxx
00-0, Xxxxxx-xxx 2-chome
Chiyoda-ku,
Tokyo 100-6150
Attention: Global Business Department,
Xxxxxxxx Xxxxxxxxx,
Managing Director
Fax: 00-0-0000-0000
with a copy to:
Squire, Xxxxxxx & Xxxxxxx L.L.P.
Ebisu Prime Square Tower, 16th Floor
1-39, Hiroo 1-chome, Xxxxxxx-xx, Xxxxx 000-0000 Xxxxx
Attention: Xxxxxxx X. Xxxxxxxx Fax: (00-0) 0000-0000
If to AT&T:
AT&T Corp.
000 Xxxxx Xxxxx Xxxxxx
Xxxxxxx Xxxxx, Xxx Xxxxxx 00000
Attention: Xxxxxxx X. Xxxxxx
Secretary and Vice President -- Law
Fax: (000) 000-0000
with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Xxxxx X. Silk
Fax: (000) 000-0000
If to AT&T Wireless:
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx, Xxxxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxx
General Counsel
Fax: (000) 000-0000
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with a copy to:
Wachtell, Lipton, Xxxxx & Xxxx
00 Xxxx 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxxxx
Xxxxx X. Silk
Fax: (000) 000-0000
or to such other address, facsimile number or telephone as either party may,
from time to time, designate in a written notice given in a like manner.
Section 11.5 Governing Law. This Agreement shall be governed by and
construed and enforced in accordance with the laws of the State of New York
applicable to contracts executed in and to be performed entirely within such
State, without giving effect to the conflicts of laws principles thereof that
would govern, construe or enforce the Agreement under laws other than the State
of New York.
Section 11.6 Arbitration. The parties encourage the prompt and
equitable settlement of all controversies or claims between or among the parties
arising out of or relating to this Agreement, the Purchase Agreement and the
Warrant Agreement including any claim based on or arising from an alleged tort,
and agree as follows:
(i) Any controversy or claim arising out of or relating to the
above-referenced Agreements ("Arbitration Claims"), including
Arbitration Claims arising under Article VI, shall be determined by
arbitration in accordance with the International Arbitration Rules of
the American Arbitration Association or any successor organization
thereof and Title 9 of the U.S. Arbitration Act in New York, New York.
(ii) Within fifteen (15) days after the delivery in accordance with
Section 11.4 hereof by any party to the other (treating AT&T and AT&T
Wireless as one party and treating DoCoMo and all of its Designees as
one party) of written notice of the commencement of arbitration, each
party shall select one person to act as an arbitrator; and the two
selected shall select a third arbitrator within fifteen (15) days of the
second arbitrator's appointment. If the arbitrators selected by the
parties are unable or fail to agree upon the third arbitrator, the third
arbitrator shall be selected by the American Arbitration Association
pursuant to its rules. Arbitration proceedings shall be conducted in the
English language.
(iii) The parties shall agree upon what, if any, discovery shall be
permitted. If the parties do not agree on the extent and form of
discovery within ten (10) days after the appointment of the third
arbitrator, then there shall be neither discovery nor the issuance of
subpoenas except as otherwise expressly directed in accordance with the
unanimous determination of the arbitrators.
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(iv) The powers of the arbitrators to fashion remedies hereunder
shall be no broader than the powers to award legal and equitable
remedies available to a court, unless the parties expressly state
elsewhere in the relevant above-referenced Agreements that the
arbitrators may order broader or narrower legal and equitable remedies.
The arbitrators shall not have the power to award any punitive damages,
and each party expressly waives any claim thereto. This Section 11.6
shall govern if any conflict arises between this Section and any other
remedy terms in the above-referenced Agreements.
(v) The arbitrators shall make their award within thirty (30) days
after the conclusion of arbitration hearings. Subject to paragraph (vi)
of this Section 11.6, the award shall be final and binding, and judgment
therein may be entered by any court having jurisdiction thereof.
(vi) Within thirty (30) days after receipt of any award (which shall
not be binding if an appeal is taken hereunder), any party (treating
AT&T and AT&T Wireless as one party and treating DoCoMo and all of its
Designees as one party) may notify the American Arbitration Association
of its intent to appeal to a second three-arbitrator tribunal, selected
in the same fashion as the initial tribunal (with the 15-day arbitrator
selection period commencing on the first Business Day after such
notification is received by the other party). At least two of the three
appellate arbitrators shall be former judges of state or federal courts.
The appeal tribunal shall be entitled to adopt the initial award as its
own, modify the initial award or substitute its own award for the
initial award. The appeal tribunal shall not modify or replace the
initial award except for errors of law or because of clear and
convincing factual errors. If an appeal is taken, the award of the
appeal tribunal shall be final and binding, and judgment may be entered
therein by any court having jurisdiction thereof. The review by the
appeal tribunal will be completed and its order issued within thirty
(30) days of the final submission of the parties to the panel.
(vii) The parties (treating AT&T and AT&T Wireless as one party and
treating DoCoMo and all of its Designees and as one party) shall equally
bear the costs and fees of the arbitration, including court reporter
expenses, and each party shall bear its own legal expenses.
(viii) The parties waive recourse to any court, including all courts
in the United States and Japan, except for enforcement of this Section
11.6 or for enforcement of any arbitral award hereunder.
(ix) The duty of the parties to arbitrate any Arbitration Claim
within the scope of this Section 11.6 shall survive the expiration or
termination of this Agreement for any reason.
Section 11.7 Headings. The descriptive headings of the several
sections in this Agreement are for convenience only and do not constitute a part
of this Agreement and shall not be deemed to limit or affect in any way the
meaning or interpretation of this Agreement.
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Section 11.8 Entire Agreement. This Agreement, the Related
Agreements and the schedules and exhibits attached to any such documents
constitute the entire agreement among DoCoMo, each Designee, AT&T and AT&T
Wireless with respect to the subject matter hereof. This Agreement and the
Related Agreements supersede all prior agreements with respect to the subject
matter hereof, and supersede the Letter Agreement in its entirety.
Section 11.9 Severability. If any term or provision of this
Agreement or any application thereof shall be declared or held invalid, illegal
or unenforceable, in whole or in part, whether generally or in any particular
jurisdiction, such provision shall be deemed amended to the extent, but only to
the extent, necessary to cure such invalidity, illegality or unenforceability,
and the validity, legality and enforceability of the remaining provisions, both
generally and in every other jurisdiction, shall not in any way be affected or
impaired thereby.
Section 11.10 Submission to Jurisdiction; Waivers. Subject to the
provisions of Section 11.6, each of the parties (including each Designee) hereto
irrevocably agrees that any legal action or proceeding with respect to this
Agreement or for recognition and enforcement of any judgment in respect hereof,
other than with respect to any dispute subject to arbitration under Section 11.6
(but including for enforcement of the arbitration provisions contained in
Section 11.6 or any award resulting therefrom) brought by any other party hereto
or its successors or assigns shall be brought and determined only in the United
States District Court for the Southern District of New York, or in the event
(but only in the event) that such court does not have subject matter
jurisdiction over such action or proceeding, only in the courts of the State of
New York. Each of the parties hereto hereby irrevocably submits with regard to
any such action or proceeding for itself and in respect of 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 or the transactions contemplated
hereby, (a) 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 Section 11.4, (b) 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 (c) to the fullest extent permitted by the applicable law, that (i) the
suit, action or proceeding in such court is brought in an inconvenient forum,
(ii) the venue of such suit, action or proceeding is improper and (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts.
Section 11.11 Waiver of Immunity. DoCoMo agrees that, to the extent
that it or any of its Subsidiaries or any of its property or the property of its
Subsidiaries is or becomes entitled to any immunity on the grounds of
sovereignty or otherwise based upon its status as an agency or instrumentality
of a government from any legal action, suit or proceeding or from set-off or
counterclaim relating to this Agreement from the jurisdiction of any competent
court or arbitrator, from service of process, from attachment prior to judgment,
from attachment in aid of execution, from execution pursuant to a judgment or an
arbitral award or from any other legal or arbitral process in any jurisdiction,
it, for itself and its property, and for each of its Subsidiaries and its
property, expressly, irrevocably and unconditionally waives, and agrees not to
plead or claim, any such immunity with respect to matters arising with respect
to this Agreement or the subject matter hereof (including any obligation for the
payment of money). DoCoMo agrees that
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the foregoing waiver is irrevocable and is not subject to withdrawal in any
jurisdiction or under any statute, including the Foreign Sovereign Immunities
Act, 28 U.S.C. Section 1602 et seq. The foregoing waiver shall constitute a
present waiver of immunity at any time any action is initiated against DoCoMo
with respect to this Agreement or the subject matter hereof (including any
obligation for the payment of money).
Section 11.12 Waiver of Jury Trial. Each party hereto hereby waives
any right it may have to a trial by jury in respect of any action, proceeding or
litigation directly or indirectly arising out of, under or in connection with
this Agreement or the transactions contemplated hereby.
Section 11.13 Counterparts. This Agreement may be executed by the
parties hereto in two or more counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
Section 11.14 Interpretation. When a reference is made in this
Agreement to an Article, Section, Exhibit or Schedule, such reference is to an
Article or Section of, or an Exhibit or Schedule to, this Agreement unless
otherwise indicated. The table of contents and headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement. Whenever the words "include,"
"includes" and "including" are used in this Agreement, they are deemed to be
followed by the words "without limitation." For all purposes of this Agreement,
except as otherwise expressly provided or unless the context otherwise requires,
(a) the terms defined include the plural as well as the singular, (b) all
accounting terms not otherwise defined herein have the meanings assigned under
generally accepted accounting principles in the United States, and (c) the words
"herein," "hereof" and "hereunder" and other words of similar import refer to
this Agreement as a whole and not to any particular Article, Section or other
subdivision.
Section 11.15 Anti-Dilution Adjustments. Any references herein to
any number of shares of any class or series of stock, or any price per share
with respect to such shares, shall be appropriately adjusted, without
duplication of any other provision of this Agreement or any Related Agreement
having the same purpose, to reflect any stock split, reverse stock split, stock
dividend or distribution or similar recapitalization of such shares.
Section 11.16 Effectiveness of this Agreement. The parties agree
that this Agreement shall become effective on the Closing Date immediately
following the Closing, and that prior thereto, neither this Agreement nor any
provision of hereof shall be effective or binding upon any of the parties hereto
(other than this Section 11.16), and each party agrees not to seek to enforce
any provision of this Agreement (other than this Section 11.16) prior to, or
with respect to the period prior to, the Closing. In the event the Purchase
Agreement is terminated without the Closing having occurred, this Agreement
shall be terminated and shall be null and void, without any liability of any
party, and shall be deemed by all parties as if it had not been executed by any
of the parties.
Section 11.17 No Third Party Beneficiaries. Except as set forth in
Section 6.1(c), nothing in this Agreement, expressed or implied, is intended to
confer upon any Person, other than the parties hereto or their respective
successors (including, without limitation, each
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Designee and any successor to AT&T Wireless pursuant to Section 11.18), any
rights, remedies, obligations or liabilities under or by reason of this
Agreement.
Section 11.18 Substitution for AT&T Wireless. In the event the
Spin-off is to be effected by spinning off an entity other than AT&T Wireless,
AT&T shall cause the corporation that is the subject of the Spin-off (and that
is to be the issuer of publicly traded common stock representing the former
Wireless Group) to execute this Agreement. Upon such execution, such corporation
shall be substituted for AT&T Wireless for all purposes of this Agreement, and
all references herein and therein to AT&T Wireless Common Stock shall be deemed
to refer to the publicly traded common stock of such corporation outstanding as
of and following the Spin-off.
Section 11.19 Amended and Restated Agreement. This Amended and
Restated Agreement is entered into as of December 20, 2001. Except as
specifically set forth herein, any reference to the date hereof shall refer to
the date the Agreement was originally entered into, December 20, 2000. Execution
of this Amended and Restated Agreement shall not alter the parties rights under
this Agreement with respect to any transactions pending as of December 20, 2001.
[The remainder of this page intentionally left blank.]
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IN WITNESS WHEREOF, the relevant parties have caused this Amended
and Restated Investor Agreement to be duly executed by their respective
authorized officers as of the date set forth at the head of this Amended and
Restated Investor Agreement.
AT&T WIRELESS SERVICES, INC.
By: /s/Xxxx X Xxxxxx
Name: Xxxx X. Xxxxxx
Title: Chief Executive Officer
NTT DOCOMO, INC.
By: /s/Xxxxx Xxxxxxxxx
Name: Xxxxx Xxxxxxxxx
Title: President and
Chief Executive Officer
Date: December 27, 2001
[SIGNATURE PAGE TO INVESTOR AGREEMENT]
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IN WITNESS WHEREOF, each Designee referred to on this page has
caused this Agreement to be duly executed by its authorized officer as of the
date indicated beneath its signature.
Name of Designee #1:_______________________________
By: _______________________________________________
Name:
Title:
Date:
Name of Designee #2:_______________________________
By: _______________________________________________
Name:
Title:
Date:
EXHIBIT A
"Cost of Carry" means the applicable interest rate set forth on the
table below for the following time periods (expressed in days, based on a
360-day year of twelve 30-day months, except for periods of 12 months or less
which will be expressed in actual days of 365 based on a 360-day year according
to the money market convention).
Relevant Period Interest Rate
--------------- -------------
90 days or less 6.477%
180 days 6.348%
360 days 6.336%
540 days 6.563%
720 days 6.475%
1,080 days 6.499%
1,440 days 6.673%
1,800 days 6.647%
2,160 days 6.758%
2,520 days or more 6.819%
The interest rate that will apply to any time period between any two
points in the foregoing table will be an interpolated rate, which interpolated
rate will apply to the entire time period. As an example only: using the rate of
6.475% for 720 days and the rate 6.499% for 1,080 days, then (i) the rate for
900 days (half way between the two points) would be 6.487% (half way between the
two rates); (ii) the rate for 810 days (one quarter of the way between the two
points) would be 6.481% (one quarter of the way between the two rates); and
(iii) the rate for 990 days (three quarters of the way between the two points)
would be 6.493% (three quarters of the way between the two rates). The
applicable interest rate will be compounded over the applicable time period
based on a semi-annual bond equivalent yield using a 360-day year of twelve
30-day months, except for periods of 12 months or less which will be expressed
in actual days of 365 based on a 360-day year according to the money market
convention.
EXHIBIT B
LIST OF SEPARATION AGREEMENTS
1. Separation and Distribution Agreement by and between AT&T Corp. and AT&T
Wireless Services, Inc.
2. Schedules to Separation and Distribution Agreement by and between AT&T
Corp. and AT&T Wireless Services, Inc.
3. Brand License Agreement
4. Intellectual Property Agreement
5. Form of Patent Assignment
6. Amended and Restated Tax Sharing Agreement
7. AT&T Master Carrier Agreement with Attachments
8. Interim and Other Services Agreement with Proposed Schedules and
Attachments
9. CITS Agreements
10. Form of Cell Site License Agreement
11. Master Building Space License Agreement for Customer Equipment
12. Equipment Space Lease Agreement
13. Agency and Referral Agreement
14. Term Sheet -- Interconnection and Intercarrier Compensation Agreement
between AT&T Wireless and AT&T Business
15. Term Sheet -- Supply of SS7 Signaling Services by AT&T Wireless to AT&T
Business
16. Term Sheet -- Irrevocable License to Use 38 GHZ License Spectrum by AT&T
Wireless to AT&T Business
17. Employee Benefits Agreement by and between AT&T Corp. and AT&T Wireless
Services, Inc.
18. Revised Pages to Schedules to Separation and Distribution Agreement by
and between AT&T Corp. and AT&T Wireless Services, Inc.
19. Revised Cover Sheet to AT&T Master Carrier Agreement
20. Marked Version of Irrevocable License to Use 38 GHZ License Spectrum by
AT&T Wireless to AT&T Business
21. Revised Pages to Employee Benefits Agreement by and between AT&T Corp.
and AT&T Wireless Services, Inc.
SCHEDULE 3.4
SENIOR LEADERSHIP TEAM AS OF NOVEMBER 30, 2000
Xxxx Xxxxxx
Xxxxx Xxxxx -- CEO Mobile Wireless
Xxxxxxx Xxxxx -- CEO Fixed Wireless
Xxxxxx Xxxxxxxx -- CEO International
Xxx XxXxxx -- CFO
Xxx Xxxxxx -- CTO
Xxxx Xxxxxxx -- Network Operations
Xxx Xxxxxxx -- Marketing & Business Operations
Xxxxxx Xxxxxxxxxxxxx -- Wireless Data
Xxxx Xxxxx -- M&A
Xxx Xxxxxxx -- Corp. Strategy
Xxxx Xxxxx -- Administration
Xxxx Xxxxxx -- Chief Counsel
Xxx Xxxxxxxxxx -- HR&PR
SCHEDULE 4.1
TOP 50 U.S. BTAS
MARKET NAME BTA NUMBER
---------- ---------------------------------------- ------------------
1 New York, NY 321
2 Los Angeles, CA 262
3 Chicago, IL 78
0 Xxx Xxxxxxxxx-Xxxxxxx-Xxx Xxxx, XX 404
5 Philadelphia, XX-Xxxxxxxxxx, XX 000
0 Xxxxxx-Xxxx Xxxxx, XX 101
7 Detroit, MI 112
8 Houston, TX 196
9 Washington, DC 461
10 Boston, MA 51
11 Atlanta, GA 24
00 Xxxxx-Xx. Xxxxxxxxxx, XX 293
13 Phoenix, AZ 347
14 Minneapolis-St.Xxxx, MN 298
15 Seattle-Tacoma, WA 413
16 Cleveland-Akron, OH 84
17 St. Louis, MO 394
00 Xxx Xxxxx, XX 000
00 Xxxxxx, XX 110
20 Baltimore, MD 29
00 Xxxxx-Xx. Xxxxxxxxxx-Xxxxxxxxxx, XX 440
22 Pittsburgh, PA 350
23 Cincinnati, OH 81
24 Portland, OR 000
00 Xxxxxx Xxxx, XX 226
26 Charlotte-Gastonia, NC 74
27 Sacramento, CA 389
28 San Antonio, TX 401
29 Milwaukee, WI 297
30 Norfolk-Virginia Beach-Newport, VA 324
31 Nashville, TN 314
32 Columbus, OH 95
33 Orlando, FL 336
34 Salt Lake City-Ogden, UT 399
35 Memphis, TN 290
36 Providence-Pawtucket, RI 364
37 Indianapolis, IN 204
38 Louisville, KY 263
39 Las Vegas, NV 245
40 Oklahoma City, OK 329
00 Xxx Xxxxxxx, XX 000
00 Xxxxxxx-Xxxxxx, XX 368
43 Greensboro-Winston-Salem-High, NC 174
44 Jacksonville, FL 212
45 Birmingham, AL 44
46 Austin, TX 27
47 Richmond-Petersburg, VA 374
48 Dayton-Springfield, OH 106
49 Buffalo-Niagara Falls, NY 60
50 Rochester, NY 379
SCHEDULE 5.3(b)
MOBILE MULTIMEDIA SUPPORT/CONTRIBUTION*
i-mode support will include DoCoMo's know-how, experience and technology related
to i-mode services including support in the following categories:
- i-mode business model development
- i-mode service plan, design and product management, including design of the
i-mode portal and the design of screen layout and screen flow
- Content providers selection, content management and development, including
web site and organization structure, and specifications for content,
including specifications for content providers to develop internet content
for i-mode
- Handset design and manufacturer management, including screen captures,
input support, handset (hardware) specification and handset applications
(software) specification
- Marketing & Sales
- Service system development and maintenance, including know-how on server
function and server design, system architecture of servers, server
maintenance and operation and "Push" technology and relay device
------------
* Please note that because of the participation by DoCoMo in standardization
committees and similar activities (e.g., WAP forums, certain activities
related to IMT-2000 and standardization activities related to 3G), certain of
the non-core technology and know-how may not be provided on an exclusive basis
because of its disclosure in connection with these activities.
