Exhibit 3.3
AMENDMENT NO. 4
TO
LIMITED LIABILITY COMPANY AGREEMENT
OF CINGULAR WIRELESS LLC
BY AND AMONG
SBC COMMUNICATIONS INC.,
SBC ALLOY HOLDINGS, INC.,
BELLSOUTH CORPORATION,
BELLSOUTH MOBILE DATA, INC.,
AB CELLULAR HOLDING, LLC,
WIRELESS TELECOMMUNICATIONS INVESTMENT COMPANY LLC,
BELLSOUTH CELLULAR CORP.,
RAM BROADCASTING CORPORATION,
BLS CINGULAR HOLDINGS, LLC
AND
CINGULAR WIRELESS CORPORATION
DATED AS OF DECEMBER 31, 2001
AMENDMENT No. 4
LIMITED LIABILITY COMPANY AGREEMENT
OF CINGULAR WIRELESS LLC
AMENDMENT NO. 4 (the "Amendment") TO LIMITED LIABILITY COMPANY
AGREEMENT OF CINGULAR WIRELESS LLC (the "Company"), dated as of December 31,
2001 by and among SBC Communications Inc., a Delaware corporation ("SBC"), SBC
Alloy Holdings, Inc., a Delaware corporation ("SBC Holdings"), BellSouth
Corporation, a Georgia corporation ("BellSouth"), BellSouth Mobile Data, Inc.,
a Georgia corporation ("BellSouth Mobile Data"), AB Cellular Holding, LLC, a
Delaware limited liability company ("ABC"), Wireless Telecommunications
Investment Company LLC, a Delaware limited liability company ("Wireless
Investco"), BellSouth Cellular Corp., a Georgia corporation ("BellSouth
Cellular"), RAM Broadcasting Corporation, a New York corporation ("RAM"), BLS
Cingular Holdings, LLC, a Georgia limited liability company ("BLS"), and
Cingular Wireless Corporation, a Delaware corporation ("Manager").
RECITALS
WHEREAS, SBC, SBC Holdings, BellSouth, BellSouth Mobile Data,
BellSouth Cellular, RAM, ABC, Wireless Investco and Manager are parties to the
Limited Liability Company Agreement of Cingular Wireless LLC dated as of
October 2, 2000, as amended ("Agreement");
WHEREAS, on the date hereof BellSouth Mobile Data, BellSouth Cellular,
RAM, ABC and Wireless Investco effected a tax restructuring with the effect of
transferring all of their interests in Cingular Wireless LLC to BLS in
accordance with Section 4.1(a) of the Agreement;
WHEREAS, BLS desires to become a party to the Agreement as successor
in interest to BellSouth Mobile Data, BellSouth Cellular, RAM, ABC and Wireless
Investco in accordance with the terms of the Agreement; and
WHEREAS, the parties hereto desire to amend Section 6.13 of the
Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein and in
the Agreement, the parties hereto agree as follows:
Article 1
Effect of Amendment
1.1 Amendments. Upon the execution of this Amendment,
the Agreement shall be deemed to be amended to take account of the amendments
set forth in Article 2 hereof.
Article 2
Amendment to the Agreement
2.1. Addition and Deletion of Members. The Agreement is
hereby amended to add BLS as a Member and delete BellSouth Mobile Data,
BellSouth Cellular, RAM, ABC and Wireless Investco as Members.
2.2. Schedule 8.1(a). Schedule 8.1(a) to the Agreement is
hereby amended to delete BellSouth Mobile Data, BellSouth Cellular, RAM, ABC
and Wireless Investco and their respective Percentage Interests, Capital
Contributions and LLC Units from Schedule 8.1(a) and add the following:
Member Percentage Interest Capital Contributions LLC Units
"BLS CINGULAR HOLDINGS, LLC 39.99999995% 800,000,003"
Article 3
Agreements
3.1 Performance Guaranty. BellSouth hereby guarantees
the performance of all obligations of BLS under the Agreement.
3.2 No Termination. BLS hereby represents and warrants
that the transfer has not resulted in, and will not result in a termination of
the Company for United States Federal Income Tax purposes.
3.3 Covenants. Each of BellSouth and BLS covenants and
agrees with Newco and SBC that, for so long as BLS Beneficially Owns
Securities, BLS shall continue to be a wholly owned Subsidiary of BellSouth,
unless the only Securities owned by BLS are Public Common Stock. BLS agrees
that it shall be bound by the obligations of BellSouth under the Agreement (but
shall not have any of the rights of BellSouth under the Agreement except as
provided in Section 4.1 pursuant to an assignment effected in accordance with
the terms thereof).
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Article 4
Representations and Warranties of BellSouth
4.1 Wholly Owned Subsidiaries. BellSouth hereby
represents and warrants that BLS is a wholly owned Subsidiary of BellSouth.
4.2 Transfer of LLC Units. BellSouth hereby represents
and warrants that each of BellSouth Mobile Data, BellSouth Cellular, RAM, ABC
and Wireless Investco has transferred all of its LLC Units to BLS.
Article 5
Agreement of BellSouth Mobile Data, BellSouth Cellular, RAM,
ABC and Wireless Investco
5.1 Each of BellSouth Mobile Data, BellSouth Cellular,
RAM, ABC and Wireless Investco hereby covenants and agrees that it is no longer
a Member.
Article 6
Indemnification
6.1 Section 6.13 of the Agreement is hereby deleted in
its entirety and replaced with the following:
6.13 Indemnification. (a) The Manager shall not
be liable, responsible or accountable in damages or otherwise
to Newco, to any third party or to any Member for (i) any act
performed or omission within the scope of the authority
conferred on the Manager by this Agreement or otherwise
except for the gross negligence, fraud or willful misconduct
(including any willful violation of the terms of the Manager
Certificate or this Agreement) of the Manager, (ii) the
Manager's performance of, or failure to perform, any act on
the reasonable reliance on advice of legal counsel to Newco
or (iii) the negligence, dishonesty or bad faith of any
agent, consultant or broker of Newco selected, engaged or
retained in good faith and with reasonable prudence. In any
threatened, pending or completed action, suit or proceeding,
the Manager shall, to the fullest extent permitted by law, be
fully protected and indemnified and held harmless by Newco
against all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, proceedings, costs,
expenses and disbursements of any kind or nature whatsoever
(including, without limitation, reasonable attorneys' fees,
costs of investigation, fines, judgments and amounts paid in
settlement, actually incurred by the Manager in connection
with such action, suit or proceeding) by virtue of its status
as an indemnified party or with respect to any action or
omission taken or suffered in
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good faith, other than liabilities and losses resulting from
the gross negligence, fraud, breach of fiduciary duty or
willful misconduct (including any willful violation of the
terms of the Manager Certificate or this Agreement) of the
Manager. The indemnification provided by this Section 6.13
shall be recoverable only out of the assets of Newco, and no
Member shall have any personal liability on account thereof.
(b)(i) Newco shall indemnify to the full
extent permitted by law (A) any person made or threatened to
be made a party to any action, suit or proceeding, whether
civil, criminal, administrative or investigative, by reason
of the fact that such person or such person's testator or
intestate is or was an officer of Newco or was a director,
officer, member, stockholder, partner, incorporator or
liquidator of a Subsidiary of Newco or serves or served at
the request of Newco any other enterprise as a director,
officer, employee, member, stockholder, partner, incorporator
or liquidator or in any other capacity and (B) the Manager to
the extent of its indemnification payments under its bylaws.
Expenses, including reasonable attorneys' fees, incurred by
any such person in defending any such action, suit or
proceeding shall be paid or reimbursed by Newco promptly upon
demand by such person and, if any such demand is made in
advance of the final disposition of any such action, suit or
proceeding, promptly upon receipt by Newco of an undertaking
of such person to repay such expenses if it shall ultimately
be determined that such person is not entitled to be
indemnified by Newco. The rights provided to any person by
this provision shall be enforceable against Newco by such
person, who shall be presumed to have relied upon it in
serving or continuing to serve as an officer or in such other
capacity as provided above. In addition, the rights provided
to any person by this provision shall survive the termination
of such person as any such officer of Newco or director,
officer, member, stockholder, partner, incorporator or
liquidator of a Subsidiary of Newco and, insofar as such
person served at the request of Newco as a director, officer,
member, stockholder, partner, incorporator or liquidator of
or in any other capacity for any other enterprise, shall
survive the termination of such request as to service prior
to termination of such request.
(ii) Notwithstanding anything contained
in this subsection (b), except for proceedings to enforce
rights provided in this subsection (b), Newco shall not be
obligated under this subsection (b) to provide any
indemnification or any payment or reimbursement of expenses
to any officer or other person in connection with a
proceeding (or part thereof) initiated by such person (which
shall not include counterclaims or crossclaims initiated by
others) unless the board of directors of the Manager has
authorized or consented to such proceeding (or part thereof)
in a resolution adopted by it.
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(iii) For purposes of this subsection
(b), the term "Newco" shall include any predecessor of Newco
and any constituent entity (including any constituent of a
constituent) absorbed by Newco in a consolidation or merger;
the term "other enterprise" shall include any corporation,
partnership, limited liability company, joint venture, trust,
association or other unincorporated organization or other
entity and any employee benefit plan; the term "officer,"
when used with respect to Newco, shall refer to any officer
elected by or appointed pursuant to authority granted by the
board of directors of the Manager pursuant to Section 4.2 of
the bylaws of the Manager, when used with respect to a
Subsidiary or other enterprise that is a corporation, shall
refer to any person elected or appointed pursuant to the
by-laws of such Subsidiary or other enterprise or chosen in
such manner as is prescribed by the by-laws of such
Subsidiary or other enterprise or determined by the board of
directors of such Subsidiary or other enterprise, and when
used with respect to a Subsidiary or other enterprise that is
not a corporation or is organized in a foreign jurisdiction,
the term "officer" shall include in addition to any officer
of such entity, any person serving in a similar capacity or
as the manager of such entity; service "at the request of
Newco" shall include service as an officer or employee of
Newco which imposes duties on, or involves services by, such
officer or employee with respect too an employee benefit
plan, its participants or beneficiaries; any excise taxes
assessed on a person with respect to an employee benefit plan
shall be deemed to be indemnifiable expenses; and action by a
person with respect to an employee benefit plan which such
person reasonably believes to be in the interest of the
participants and beneficiaries of such plan shall be deemed
to be action not opposed to the best interests of Newco.
(iv) Nothing in this subsection (b)
shall limit the power of Newco or the Manager to provide
rights of indemnification and to make payment and
reimbursement of expenses, including attorneys' fees, to
officers, employees, agent or other persons otherwise than
pursuant to this subsection (b).
(v) Payments made by Newco directly to
attorneys representing persons entitled to indemnification
hereunder (each an "Indemnified Party") and payments made by
Newco directly to claimants or other persons or entities to
discharge obligations of such persons that would be
indemnifiable under this subsection (b) if paid by such
persons, shall also be deemed to be indemnification payments.
(c) To the extent that, at law or in
equity, an Indemnified Party has duties (including fiduciary
duties) and liabilities relating thereto to Newco, any Member
or to any other Indemnified Party, an Indemnified Party
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acting under this Agreement shall not be liable to Newco or
to any Member or to any other Indemnified Party for its good
faith reliance on the provisions of this Agreement. The
provisions of this Agreement, to the extent that they
restrict the duties and liabilities of an Indemnified Party
otherwise existing at law or in equity, are agreed by the
parties hereto to replace such other duties and liabilities
of such Indemnified Party.
(d) No amendment of this Section 6.13
shall impair the rights of any person arising at any time
with respect to events occurring prior to such amendment.
Article 7
Miscellaneous
7.1 References to Agreement. Following the execution of
this Amendment all references in the Agreement to the "Agreement" shall be
deemed to be references to the Agreement as amended by this Amendment.
7.2 Counterparts. This Amendment may be executed in one
or more counterparts, each of which shall be deemed to be an original by the
parties executing such counterpart, but all of which shall be considered one
and the same instrument.
7.3 Section Headings; Capitalized Terms. The section and
paragraph headings contained in this Amendment are for reference purposes only
and shall not in any way affect the meaning or interpretation of this
Amendment. Capitalized terms used but not defined herein shall have the
meanings ascribed to such terms in the Agreement.
7.4 Governing Law. This Amendment shall be governed by,
and construed in accordance with, the laws of the State of Delaware without
reference to the choice of law principles thereof.
7.5 No Further Amendments. Except as expressly provided
in this Amendment, the Agreement shall not be amended or deemed to be amended
in any respect.
7.6 Release of Liability. Each of BellSouth Mobile Data,
BellSouth Cellular, RAM, ABC and Wireless Investco is hereby released from its
duties and obligations under the Agreement and is no longer liable under the
Agreement except for any breaches under the Agreement while it was a Member;
provided that the foregoing shall not affect any liability of BellSouth.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to
be executed by their respective duly authorized officers as of the day and year
first above written.
SBC COMMUNICATIONS INC.
By: /s/ XXXXXXX XXXXXXXXXX
-------------------------------------------------
Name: XXXXXXX XXXXXXXXXX
Title: SR. EXECUTIVE VICE PRESIDENT
& CHIEF FINANCIAL OFFICER
SBC ALLOY HOLDINGS, INC.
By: /s/ XXXXXXX X. XXXXXX
-------------------------------------------------
Name: XXXXXXX X. XXXXXX
Title: GROUP PRESIDENT & C.O.O.
BELLSOUTH CORPORATION
By: /s/ Xxxxx X. Xxxxxxxx
-------------------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President -- Corporate Development
BELLSOUTH MOBILE DATA, INC.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
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AB CELLULAR HOLDING, LLC
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager
WIRELESS TELECOMMUNICATIONS INVESTMENT COMPANY LLC
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Manager
BELLSOUTH CELLULAR CORP.
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
RAM BROADCASTING CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
BLS CINGULAR HOLDINGS, LLC
BY: BELLSOUTH MOBILE DATA, INC., MANAGER
By: /s/ Xxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President
CINGULAR WIRELESS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Chief Financial Officer
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