Exhibit 10.1
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AMENDMENT NO. 1 TO AMENDED AND RESTATED INVESTOR AGREEMENT
Amendment No. 1 (this "Amendment"), dated as of December 26, 2002, to
the Amended and Restated Investor Agreement (the "Agreement"), dated as of
December 20, 2001, by and among AT&T Corp., AT&T Wireless Services, Inc. ("AT&T
Wireless"), and NTT DoCoMo, Inc. ("DoCoMo") (capitalized terms used but not
defined herein having the meanings assigned to such terms in the Agreement).
WHEREAS, pursuant to, and in accordance with Section 11.3 of the
Agreement, the parties hereto desire to amend the Agreement;
WHEREAS, pursuant to Section 11.3 of the Agreement, the Agreement may
be amended by an agreement in writing executed by DoCoMo and AT&T Wireless to
the extent such amendment does not affect any rights or obligations of AT&T
Corp.;
NOW, THEREFORE, the parties hereto agree as follows:
Section 1. Amendments. The Agreement is hereby amended as follows:
1.1. Definitions.
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1.1.1. The following sentence shall be added after the definition
of "Acquired SpinCo Warrants" in Section 1.1 of the
Agreement:
"Acquisition Issuance" shall mean an issuance of a
number of Additional Securities greater than 5% of the then
outstanding Equity Common Shares in any acquisition or
business combination transaction for consideration other
than cash.
1.1.2. The following sentence shall be added after the definition
of "Competes" in Section 1.1 of the Agreement:
"Contribution Obligations" shall have the meaning set
forth in Section 5.3(e).
1.1.3. The following sentence shall be added after the definition
of "DoCoMo AT&T Wireless Nominees" in Section 1.1 of the
Agreement:
"DoCoMo Technology Member" shall have the meaning set
forth in Section 3.1(e).
1.1.4. The following sentences shall be added as the final two
sentences of the definition of "Economic Interest
Percentage" in Section 1.1 of the Agreement:
Until DoCoMo's Preemptive Rights are terminated pursuant to
Section 8.2(a), for purposes of determining DoCoMo's Economic
Interest Percentage during the period between an issuance of
Additional Securities by AT&T Wireless subject to Section 8.1
and the earlier of (x) the time at which DoCoMo completes any
purchase of Additional Securities pursuant to any Preemptive
Rights to which it is entitled in connection with such
issuance and (y) the seven month anniversary of such
issuance, the Economic Interest Percentage applicable for all
purposes under this Agreement during such period (except as
otherwise expressly provided in Section 8.1) shall be the
Economic Interest Percentage that was in effect immediately
prior to such issuance or shall be calculated as set forth in
connection with clause (D) of the following proviso;
provided, that if DoCoMo (A) responds to a notice from AT&T
Wireless of such issuance pursuant to Section 8.1 by
notifying AT&T Wireless that DoCoMo does not intend to
purchase any Additional Securities pursuant to its Preemptive
Rights with respect to such issuance, (B) fails to respond to
such notice within the applicable time period required for
such response under Section 8.1, (C) responds to such notice
by notifying AT&T Wireless that it intends to purchase any
Additional Securities pursuant to its Preemptive Rights with
respect to such issuance (including as contemplated in the
following clause (D)) but then fails to complete the purchase
promptly after giving such response as set forth in Section
8.1 or (D) responds to such notice by notifying AT&T Wireless
that it intends to purchase less than all of the Additional
Securities it is entitled to purchase pursuant to its
Preemptive Rights with respect to such issuance, then in any
case of clause (A), (B) or (C) the Economic Interest
Percentage shall be calculated giving effect to such issuance
beginning on the date of receipt of such notification from
DoCoMo by AT&T Wireless, the date DoCoMo was required and
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failed to respond or the date DoCoMo failed to complete the
purchase, as applicable, and in the case of clause (D),
beginning on the date of receipt by AT&T Wireless of the
notification from DoCoMo contemplated by clause (D), the
Economic Interest Percentage shall be calculated giving
effect to such issuance and giving effect to the number of
Additional Securities DoCoMo elected to purchase as though
DoCoMo owned such Additional Securities (so long as DoCoMo
does not fail to complete the purchase promptly after giving
such notification as set forth in Section 8.1); provided,
further, that in the event of a failure to complete a
purchase as described in clause (C) above, until the
seven-month anniversary of such issuance, the Economic
Interest Percentage shall continue to be the Economic
Interest Percentage that was in effect immediately prior to
such issuance, or, if applicable, shall continue to be
calculated in the manner contemplated above with respect to
clause (D), if (1) DoCoMo has exercised Preemptive Rights
within the applicable period required for notice of exercise
of Preemptive Rights pursuant to Section 8.1 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
required by Section 8.1 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, further that the
Economic Interest Percentage shall be calculated giving
effect to such issuance, and, if applicable, shall cease to
be calculated in the manner contemplated above with respect
to clause (D), beginning 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
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nonappealable, (y) any event occurring as a result of which
clause (2) above is no longer true and correct, or (z) DoCoMo
Transferring any securities, or failing to exercise any
subsequent Preemptive Rights, such that completion of the
exercise of Preemptive Rights with respect to which these
provisos apply would not result in DoCoMo having an Economic
Interest Percentage sufficient to avoid an Investor Rights
Termination Event (the number of consecutive days during
which the Economic Interest Percentage shall be calculated
without giving effect to such issuance and/or in the manner
contemplated above with respect to clause (D) pursuant to
this sentence shall be referred to as the "Tolling Period").
Upon completion of any purchase of Additional Securities by
DoCoMo pursuant to Preemptive Rights, the Economic Interest
Percentage shall again be calculated as set forth in the
first sentence of this definition.
1.1.5 The following sentence shall be added after the definition
of "Exchange Offer" in Section 1.1 of the Agreement:
"First Amendment" shall mean the First Amendment to the
Agreement, dated as of December 26, 2002.
1.1.6 The following sentence shall be added after the definition
of "Investor Rights Termination Event" in Section 1.1 of the
Agreement:
"Investor Rights Termination Period" means the lesser
of (x) 60 consecutive days or (y) the number of consecutive
days, if any, equal to 60 minus the Tolling Period, but, in
the case of this clause (y), in no event less than five
consecutive days."
1.1.7 The following sentence shall be added after the definition
of "Preemptive Rights" in Section 1.1 of the Agreement:
"Proposed Transaction" shall have the meaning set forth
in Section 3.9.
1.1.8 The following two sentences shall be added after the
definition of "3G" in Section 1.1 of the Agreement:
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"3G Launch Obligation" shall have the meaning set forth
in Section 4.1(a).
"Technology Committee" shall have the meaning set forth
in Section 3.1(e).
1.1.9 The reference to "Section 3.1(d)" in the definition of
"Tolling Period" shall be changed to a reference to "the
definition of Economic Interest Percentage".
1.2 Board of Directors.
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1.2.1 The following phrase shall be added at the end of the first
sentence of Section 3.1(b) of the Agreement:
; and provided, further, that from and after the date of the
First Amendment, for so long as DoCoMo's Economic Interest
Percentage in AT&T Wireless is at least 13.5%, the number of
DoCoMo AT&T Wireless Nominees shall be at least two.
1.2.2 Section 3.1(b) shall be further amended by deleting the
second sentence thereof and inserting the following sentence
in its place:
Each DoCoMo AT&T Wireless Nominee shall be, at DoCoMo's
election, either a senior officer of DoCoMo or an individual
unaffiliated with DoCoMo who has credentials appropriate to a
large publicly traded U.S. corporation, and in each case
shall be reasonably acceptable to AT&T Wireless.
1.3 Investor Rights Termination Event Definition Revisions. The first
sentence of Section 3.1(d) of the Agreement shall be amended by
deleting the phrase "any period of 60 consecutive days" therein and
replacing it with the phrase "any Investor Rights Termination
Period" and by deleting the phrase "a period of 60 consecutive
days" therein and replacing it with the phrase "an Investor Rights
Termination Period". The second sentence of Section 3.1(d) of the
Agreement shall be deleted.
1.4 Technology Committee. The following provision shall be added after
Section 3.1(d) of the Agreement:
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(e) From and after the date of the First Amendment, for so
long as an Investor Rights Termination Event has not
occurred, there shall be constituted a committee of the AT&T
Wireless Board (the "Technology Committee") comprised of
four members, one of whom shall be a DoCoMo AT&T Wireless
Nominee selected by DoCoMo (the "DoCoMo Technology Member"),
one of whom shall be the Chief Executive Officer of AT&T
Wireless and two of whom shall be independent directors
appointed by the AT&T Wireless Board. The Technology
Committee shall be constituted to consider all material
matters with respect to the proper deployment of W-CDMA
service, including material matters with respect to
schedule, timing, capital expenditures, city selection and
vendor selection in connection with such deployment, and to
make recommendations to the AT&T Wireless Board with respect
to such matters. The Technology Committee shall meet no
fewer than four times per year, such meetings to occur at
times and places mutually convenient to the members of the
Technology Committee, and telephonic participation in such
meetings shall be permitted. At each meeting of the
Technology Committee, any member of the Technology Committee
may request that the Chief Technology Officer or another
appropriate senior officer of AT&T Wireless who is
responsible for 3G deployment provide a report upon the
current status of AT&T Wireless's 3G deployment efforts. Up
to two DoCoMo employees that are designated by DoCoMo as
technically skilled in 3G-related matters may participate at
each meeting of the Technology Committee; provided that such
employees shall not have voting rights with respect to
matters discussed by the Technology Committee and that such
employees agree to be bound by the confidentiality
provisions of this Agreement. AT&T Wireless acknowledges
that the DoCoMo Technology Member shall have the right to
disclose information received through participation in the
Technology Committee to a limited number of senior DoCoMo
employees and to discuss the matters deliberated upon by the
Technology Committee with such employees, in each
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case to the extent the DoCoMo Technology Member deems
necessary or advisable to assist in the performance of the
DoCoMo Technology Member's responsibilities on the
Technology Committee; provided that such employees agree to
be bound by the confidentiality provisions of this
Agreement. This Section 3.1(e) shall terminate upon the
occurrence of an Investor Rights Termination Event or the
dissolution of the Technology Committee by the AT&T Wireless
Board upon unanimous recommendation of all of the members of
the Technology Committee and this Section 3.1(e) shall also
be subject to limitation or termination as otherwise
expressly set forth herein, including pursuant to Sections
3.6(c) or 4.3(d).
1.5 Senior Leadership Team. All of the existing text of Section 3.4 of
the Agreement shall be designated as paragraph (a), the reference
in the existing text of Section 3.4 of the Agreement to "this
Section 3.4" shall be amended to refer to "this Section 3.4(a)",
and the following shall be added to Section 3.4 of the Agreement as
paragraph (b):
(b) From and after the date of the First Amendment, AT&T
Wireless hereby agrees that DoCoMo will be entitled to
select two senior executives of DoCoMo reasonably acceptable
to AT&T Wireless to attend and participate in meetings of
AT&T Wireless's Senior Leadership Team; provided that such
executives agree to be bound by the confidentiality
provisions of this Agreement. AT&T Wireless hereby agrees to
give DoCoMo's designees at least three Business Days' notice
of meetings of its Senior Leadership Team, to the extent
practicable, and in any event will use its reasonable
efforts to provide such individuals at least as much notice
of meetings as is given to the members of the Senior
Leadership Team. DoCoMo's designees may attend such meetings
by telephone and, upon request, will be given a briefing by
a member of the Senior Leadership Team with respect to any
meeting that both such individuals do not attend. The
composition of the Senior Leadership Team, the frequency of
meetings and the matters considered by the Senior Leadership
Team shall be determined by the chief executive officer of
AT&T
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Wireless. AT&T Wireless's obligations and DoCoMo's rights
under this Section 3.4(b) shall terminate upon 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) and 4.3(d).
1.6 Consultation. The following section shall be added after Section
3.8 of the Agreement:
Section 3.9 Consultation. With respect to (i) any
transaction or series of related transactions that would
result in any Person or group of Persons owning more than
15% of the Economic Interests of AT&T Wireless, (ii) any
transaction or series of related transactions that would
result in DoCoMo's Economic Interest Percentage being less
than 10% if DoCoMo's Economic Interest Percentage is more
than 12% immediately prior to such transaction or
transactions or (iii) any transaction or series of related
transactions or agreement that would result in any person or
group of persons having governance rights more favorable
than or in addition to those of DoCoMo as set forth in this
Agreement, individually or in the aggregate (any such
transaction, series of transactions or agreement described
in clauses (i)-(iii), a "Proposed Transaction"), a senior
executive officer of AT&T Wireless shall notify DoCoMo of
the proposed terms (to the extent known by AT&T Wireless) of
such Proposed Transaction (which notification shall be made
to a designated senior executive of DoCoMo), promptly upon
the determination by the senior executive officers of AT&T
Wireless that such Proposed Transaction will be seriously
pursued, but in any event no later than the first to occur
of (x) 48 hours prior to the first occasion such Proposed
Transaction is presented to or submitted to the AT&T
Wireless Board for information or discussion (except that if
AT&T Wireless first receives an unsolicited proposal from a
third party with respect to a Proposed Transaction less than
48 hours prior to a meeting of the AT&T Wireless Board and
desires to discuss such proposal
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at the meeting of the AT&T Wireless Board, AT&T Wireless
will give the notice required by this Section 3.9 promptly
after receipt of such proposal) and (y) 10 days prior to
submitting the final terms of the Proposed Transaction for
approval to the AT&T Wireless Board, and a senior executive
officer shall keep DoCoMo informed (by notification to the
same designated senior DoCoMo executive) of material
developments in the terms of the Proposed Transaction on a
periodic basis, but in any event no less frequently than
prior to any update with respect to the Proposed Transaction
that is presented to or discussed with the AT&T Wireless
Board. The DoCoMo AT&T Wireless Nominees shall be entitled
to express DoCoMo's views with respect to a Proposed
Transaction at any meeting of the AT&T Wireless Board at
which such Proposed Transaction is presented for
consideration or discussion. For the avoidance of doubt, the
parties acknowledge that neither DoCoMo nor its chief
executive officer nor the DoCoMo AT&T Wireless Nominees nor
DoCoMo's designees shall have any rights of consent or veto
with respect to any such matters, except as expressly
provided in Section 3.3 of the Agreement. In addition to the
foregoing, upon the request of the chief executive officer
of DoCoMo, the chief executive officer of AT&T Wireless will
meet with the chief executive officer of DoCoMo at least
annually at a mutually convenient time and place to discuss
their respective views on the subject of consolidation in
the wireless industry generally. The meetings referred to in
the immediately preceding sentence are intended to
supplement, and not to replace, the ongoing meetings and
discussions that the chief executive officers and other
executives of AT&T Wireless and DoCoMo may have from time to
time on a variety of subjects, including, without
limitation, on the subject of consolidation in the wireless
industry. This Section 3.9 shall terminate upon the
occurrence of an Investor Rights Termination Event and shall
also be subject to limitation or termination as otherwise
expressly set forth herein, including pursuant to Sections
3.6(c) or 4.3(d).
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1.7 Standstill. The following phrase shall be added at the end of
Section 3.6(a)(vii) of the Agreement:
, provided that DoCoMo may make a non-public, confidential
request to the AT&T Wireless Board to increase the number of
DoCoMo AT&T Wireless Nominees to a greater number than that
which DoCoMo is entitled under this Agreement;
1.8 Technology Commitment. Section 4.1(a) of the Agreement is amended
by deleting the first sentence thereof and inserting the following
sentences prior to the remaining sentences:
No later than December 31, 2004, AT&T Wireless will launch
service based on W-CDMA technology using an aggregate of no
less than one thousand (1,000) new or existing cell sites
within the Seattle, Washington; San Francisco, California
Bay Area; San Diego, California; and Dallas, Texas markets
(the "3G Launch Obligation"). Notwithstanding the foregoing,
if AT&T Wireless determines that such launch in the Dallas,
Texas market and/or the San Diego, California market would
not be commercially or technologically feasible or
desirable, then AT&T Wireless may substitute, at its option,
(x) the Miami, Florida market or the Detroit, Michigan
market in lieu of Dallas, Texas and/or (y) any of the
following markets (other than, if applicable, the market to
be substituted for Dallas, Texas) in lieu of San Diego,
California: Miami, Florida; Phoenix, Arizona; Houston,
Texas; or Detroit, Michigan; provided, that if AT&T Wireless
determines that such launch in each such permitted
substitute market for San Diego, California would not be
commercially or technologically feasible or desirable, AT&T
Wireless may substitute another market in lieu of San Diego,
California, covering a comparable number of licensed pops
(based on the licensed pops figures contained in the then
most current Claritas survey or comparable recognized survey
if there is no Claritas survey), subject to DoCoMo's consent
which shall not be unreasonably withheld; and provided,
further, that no such substitution or substitutions shall
affect the obligation of AT&T Wireless to launch such
service
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using an aggregate of no less than one thousand (1,000) new
or existing cell sites. In the event of any such
substitution or substitutions, the term "3G Launch
Obligation" shall refer to such launch in the four selected
markets giving effect to such substitution or substitutions.
The deployment of such service shall target footprints
within the four selected markets indicated by the pink
shaded areas set forth on the maps of such markets attached
hereto as Schedule 4.1 (or in the case of a substitute
market not included in such maps, the designated area of
such market depicted on a map submitted by AT&T Wireless to
DoCoMo as part of its request for consent pursuant to the
first proviso of the second sentence of this Section
4.1(a)), and at least 90% (900) of the cell sites used to
deploy such service shall be located within such pink shaded
(or designated) areas. A launch shall be deemed to be a
"launch" in compliance with this Section 4.1(a) if it
includes, in addition to the requirements set forth in the
foregoing sentences of this Section 4.1(a), the marketing of
such service through sales channels and employing marketing
techniques that, in each case, are appropriate to the
service offering and designed to target early-adopters and
high-technology businesses located within the targeted
footprints.
1.9 Technology Default Right. Sections 4.3(a) and 4.3(b) of the
Agreement are amended by deleting both such sections in their
entirety and inserting the following in lieu thereof:
(a) In the event that either (i) the AT&T Wireless Board
requires or approves a change in AT&T Wireless's use of
W-CDMA technology as the primary standard for its delivery
of wireless services based on 3G technology before December
31, 2004 (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)) or (ii) AT&T
Wireless fails to meet the 3G Launch Obligation (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
Wireless to repurchase (1) the shares of AT&T Wireless
Common Stock that
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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
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 Wireless
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 (i) within 30 days of written notice to
DoCoMo of such Board action, in the case of clause (i) of
Section 4.3(a) or (ii) by January 31, 2005, in the case of
AT&T Wireless's failure to meet the 3G Launch Obligation
pursuant to clause (ii) of Section 4.3(a). Unless terminated
earlier pursuant to the proviso to the first sentence of
Section 4.3(a), the Technology Default Right shall survive
until January 31, 2005 or, if exercised in accordance with
the terms set forth in this Section 4.3, until fulfillment
of the obligations of AT&T Wireless pursuant to this Section
4.3.
1.10 Contribution and Resources. The following provision shall be
inserted after Section 5.3(d) of the Agreement:
(e) From and after the date of the First Amendment, DoCoMo's
obligations pursuant to (i) Section 5.3(b), (ii) Section
5.3(c) and (iii) the letter agreement between DoCoMo and
AT&T Wireless dated November 30, 2000 relating to the
licensing of i-mode (the obligations described in clauses
(i)-(iii) being described collectively as the "Contribution
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Obligations") shall terminate; provided that, for the
avoidance of doubt, such termination shall not affect
DoCoMo's obligations under Article X; and provided further
that at either AT&T Wireless' or DoCoMo's written request,
AT&T Wireless and DoCoMo will engage in negotiations on a
case by case basis with respect to specific contributions to
the MMS and confidentiality obligations with respect to such
contributions. AT&T Wireless and DoCoMo agree that DoCoMo's
contributions, if any, made pursuant to such sections and/or
letter agreement as of the date of the First Amendment shall
be deemed to fully satisfy the Contribution Obligations.
Each of AT&T Wireless and DoCoMo hereby irrevocably waives
any and all claims and causes of actions against the other
(x) for any breach or alleged breach of such sections and/or
letter agreement and/or (y) relating to or arising from AT&T
Wireless's use of any contribution, right or license made or
contributed by DoCoMo pursuant to such sections and/or
letter agreement, if any.
1.11 Preemptive Rights. Section 8.1 of the Agreement shall be deleted in
its entirety and replaced with the following:
Section 8.1 Preemptive Rights. (a) Subject to Section 8.2,
immediately after AT&T Wireless issues any Equity Shares
(collectively, the "Additional Securities") (other than to a
wholly owned Subsidiary of AT&T Wireless and exclusive of
any Equity Shares issued upon exercise of the Warrants) or,
in the case of an Acquisition Issuance, immediately after
public announcement of the transaction giving rise to such
Acquisition Issuance, AT&T Wireless shall notify DoCoMo by
written notice of such issuance or transaction (which notice
shall specify the issuance price, except in the case of an
Acquisition Issuance, 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
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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. 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 AT&T Wireless's preferred share
purchase rights plan or any successor plan thereto. 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 AT&T Wireless) 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.
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(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 45 days of the notice
given to DoCoMo; provided that in the case of an Acquisition
Issuance or other issuance of Additional Shares for other
than cash, DoCoMo must provide such acceptance within 30
days after the end of the trading period used to calculate
the Purchase Price pursuant to the penultimate or last
sentence, as applicable, of Section 8.1(e). 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, sale and issuance of Additional
Securities pursuant to any exercise of Preemptive Rights
shall occur promptly following DoCoMo's notice of exercise;
provided that, in the case of an Acquisition Issuance, the
closing shall be subject to and shall occur no earlier than
10 Business Days after the consummation of the Acquisition
Issuance. 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 AT&T Wireless and DoCoMo
will use their reasonable best efforts to satisfy the
conditions set forth in this sentence; provided that, in the
case of an Acquisition Issuance, AT&T Wireless will have no
obligation to DoCoMo
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to consummate or to use any efforts to consummate the
Acquisition Issuance.
(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%, AT&T
Wireless 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 Additional
Securities such that, after giving effect to the 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), 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); provided that, in the
event that at any time there is more than one pending or
potential exercise of Preemptive Rights by DoCoMo, neither
such exercise shall result in DoCoMo having an Economic
Interest Percentage, after giving effect to completion of
the purchase of Additional Securities pursuant to such
exercise, greater than 16%. For purposes of Section 8.1, a
"pending" exercise of Preemptive Rights means that such
Preemptive Rights have been exercised in accordance with
Section 8.1(b), but that the purchase of the Additional
Securities to which DoCoMo is entitled pursuant to such
exercise has not been completed, and a "potential" exercise
of Preemptive Rights means that AT&T Wireless has notified
DoCoMo of an issuance or transaction giving rise to such
Preemptive Rights pursuant to Section 8.1(a), but that
DoCoMo has not yet responded to such notice. If, at the time
of the determination of any Preemptive Share Amount, any
other Person has
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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%, AT&T Wireless
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 Additional Securities such that,
after giving effect to the 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); provided that, for purposes of any
exercise of Preemptive Rights to which this Section
8.1(c)(ii) applies, in the event that at any time there is
more than one pending or potential exercise of Preemptive
Rights by DoCoMo, the calculation of DoCoMo's Economic
Interest Percentage immediately prior to a particular
issuance of Additional Securities giving rise to Preemptive
Rights shall be made as to such issuance only pursuant to
the first sentence of the definition of Economic Interest
Percentage. 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
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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, AT&T Wireless 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);
provided that, in the event that an issuance of Additional
Securities gives rise to Preemptive Rights under this
Section 8.1(d) and at the time of such issuance (i) there is
a potential exercise of Preemptive Rights and (ii) AT&T
Wireless has provided DoCoMo with five Business Days written
notice of such issuance, then DoCoMo's Economic Interest
Percentage shall be computed for purposes of this Section
8.1(d) only in accordance with the first sentence of the
definition thereof. 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
AT&T Wireless and DoCoMo) and, except as otherwise set forth
below, shall equal per Additional Security the actual per
security price paid by the other Person or Persons for such
Additional Securities (without deducting any costs or
expenses of AT&T Wireless in connection therewith) for the
Additional Securities giving rise to such Preemptive Right
(the "per security issuance price"). In the case of exercise
of Preemptive Rights resulting from issuances pursuant to
employee, officer
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or director benefit plans or arrangements, the Purchase
Price shall be the average closing price for the shares of
AT&T Wireless Common Stock for the 30-trading day period
ending on the 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 (computed only
pursuant to the first sentence of the definition thereof) 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
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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. In the case of any issuance of Additional
Securities in connection with an Acquisition Issuance, the
Purchase Price shall be the average closing price of AT&T
Wireless Common Stock for the 60-trading day period
beginning on the 30th trading day before the date of public
announcement of the transaction giving rise to such
Acquisition Issuance. Except as provided in the previous
sentence, in the case of any issuance of Additional
Securities other than solely for cash, the Purchase Price
shall be the average closing price of AT&T Wireless Common
Stock for the 30-trading day period beginning on the date of
the issuance of the Additional Securities.
(f) Notwithstanding the foregoing, the provisions of Section
8.1 of this Agreement as in effect prior to amendment by the
First Amendment shall apply for all issuances of Equity
Shares prior to the date of the First Amendment.
1.12 Schedule 4.1. Schedule 4.1 of the Agreement shall be deleted and
replaced with Schedule 4.1 attached hereto.
1.13 Section 10.3(a). In the first proviso in Section 10.3(a), the
phrase "the reference to 60 days appearing in the definition of
Investor Rights Termination Event shall be deemed to be a reference
to 90 days" shall be deleted and replaced with the phrase "the
references to the number 60 appearing in the definition of Investor
Rights Termination Period shall be deemed to be references to the
number 90". In the second proviso in Section 10.3(a), the phrase
"the reference to 60 days appearing in the definition of Investor
Rights Termination Event shall be deemed to be a reference to one
year" shall be deleted and replaced with the phrase "the references
to the number 60 appearing in the definition of Investor Rights
Termination Period shall be deemed to be references to the number
365".
1.14 i-mode Roaming. Section 10.1(d) of the Agreement is amended by
deleting such section in its entirety and inserting the following
in lieu thereof:
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(d) Nothing in Sections 10.1(a), (b) or (c) shall be
construed (i) to prohibit any party from entering into
customary commercial roaming agreements or (ii) to prohibit
DoCoMo or any of its licensees from providing to its
subscribers outside the Home Territory of AT&T Wireless that
are roaming in the Home Territory of AT&T Wireless under
customary commercial roaming agreements the services
necessary to allow such subscribers to access i-mode
services; provided that such services shall not include any
advertisement of the i-mode brand in the Home Territory of
AT&T Wireless, it being understood that the mere actual use
of i-mode services by such subscribers (even if the i-mode
or DoCoMo trademark is displayed on such subscribers'
wireless device during such use) does not constitute such
advertisement. For the avoidance of doubt, AT&T Wireless and
DoCoMo agree that (x) DoCoMo shall not be entitled to, and
shall not be entitled to license any Person that is (or
whose Affiliate is) engaged in any of the businesses
described in Section 10.1(a) or (b) to, advertise, market or
offer i-mode services in the Home Territory of AT&T
Wireless, and (y) AT&T Wireless shall be entitled to
continue to advertise, market and offer services under its
m-mode marks in the Home Territory of AT&T Wireless. AT&T
Wireless and DoCoMo further agree that, in the Caribbean
islands outside AT&T Wireless's Home Territory, the m-mode
marks may be displayed on the wireless devices of
subscribers using AT&T Wireless's services or services of
affiliated companies that use AT&T Wireless's network, it
being understood that nothing herein shall prevent AT&T
Wireless from asserting the right to use the m-mode marks
for all purposes outside its Home Territory or prevent
DoCoMo from asserting that AT&T Wireless's use of any m-mode
marks outside AT&T Wireless's Home Territory is not
permitted, other than to the limited extent expressly
provided in this sentence.
Section 2. Governing Law. This Amendment 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
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giving effect to the conflicts of laws principles thereof that would
govern, construe or enforce this Amendment under laws other than the
State of New York.
Section 3. Effectiveness. This Amendment shall become effective on the
execution thereof. From and after the date hereof, each reference to
the Agreement in any other instrument or document shall be deemed a
reference to the Agreement as amended hereby, unless the context
otherwise requires.
Section 4. Headings. The descriptive headings of this Amendment are for
convenience only and do not constitute a part of this Amendment and
shall not be deemed to limit or affect in any way the meaning or
interpretation of this Amendment.
Section 5. Counterparts. This Amendment 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.
* * * *
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IN WITNESS WHEREOF, each of the parties hereto has duly executed this
Amendment as of the date first above written.
AT&T WIRELESS SERVICES, INC.
By: /s/ Xxxx Xxxxxx
------------------------------
Name: Xxxx Xxxxxx
Title: Chairman and Chief Executive Officer
NTT DOCOMO, INC.
By: /s/ Xxxxx Xxxxxxxxx
-----------------------------
Name: Xxxxx Xxxxxxxxx
Title: Chairman and Chief Executive Officer
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