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Exhibit 10.8
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of June 7, 2001, by and
among AT&T Corp, a New York corporation ("AT&T"), and AT&T Wireless Services,
Inc., a Delaware corporation ("Wireless").
WHEREAS, the Board of Directors of AT&T has approved and declared
advisable the separation of the Wireless Group (as defined in AT&T's amended and
restated certificate of incorporation (the "AT&T Charter")) from AT&T (the
"Separation");
WHEREAS, to effect the Separation, all the then issued and
outstanding shares of AT&T Wireless Group Common Stock will be redeemed in
exchange for shares of common stock of Wireless ("Wireless Common Stock") in
accordance with the AT&T Charter, and a portion of AT&T's remaining interest in
Wireless will be distributed pro rata (the "Distribution") to holders of shares
of AT&T's Common Stock, par value $1.00 per share;
WHEREAS, following the Distribution, AT&T will retain a number of
shares of Wireless Common Stock equal to $3 billion divided by the closing share
price of shares of AT&T Wireless Group tracking stock on the New York Stock
Exchange under the symbol "AWE" on the record date for determining holders of
AT&T common stock entitled to receive the Distribution (without giving effect to
any extended-hours trading) (the "Shares");
WHEREAS, in connection with the Separation and Distribution,
Wireless has agreed to grant certain registration rights to AT&T in respect of
the Shares, on the terms and subject to the conditions set forth herein;
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties to this Agreement hereby agree as
follows:
1. Definitions. As used herein, the following terms shall have the
following meanings.
"Affiliate" means, as to any Person, any other Person directly or
indirectly, through one or more intermediaries, controlling, controlled by, or
under common control with such Person; provided, the term "control," as used in
this definition, shall mean with respect to any Person, the possession, directly
or indirectly, of the power to direct or cause the direction of the management
or policies of the controlled entity (whether through ownership of voting
securities, by contract or otherwise).
"Convertible Securities" shall mean any securities issued or
issuable by AT&T which by their terms are convertible or exchangeable into, or
exercisable for, Registrable Securities.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
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"Person" means an individual, a partnership, a corporation, an
association, a joint stock company, a limited liability company, a trust, a
joint venture, an unincorporated organization and a governmental entity or any
department, agency or political subdivision thereof.
"Registrable Securities" means (i) any Shares, and (ii) any
securities of Wireless or of any Person that is an Affiliate of Wireless after
the Separation issued or issuable directly or indirectly with respect to the
securities referred to in clause (i) above by way of dividend or distribution,
recapitalization, merger, consolidation, exchange or other reorganization. As to
any particular securities, such securities shall cease to be Registrable
Securities as soon as such securities (i) have been effectively registered under
the Securities Act, (ii) have been transferred in compliance with Rule 144 under
circumstances in which any legend relating to restrictions on transfer under the
Securities Act is removed, (iii) are transferable pursuant to paragraph (k) of
Rule 144, provided that the date is later than January 31, 2002, (iv) have
otherwise been transferred and a new security or securities not subject to
transfer restrictions under the Securities Act has been delivered upon such
transfer by or on behalf of AT&T, (v) would be transferable by AT&T under Rule
144 or any successor rule in 30 days or less given Wireless's trading volume at
the time and the aggregate amount of Registrable Securities of such class held
by AT&T, provided that the date is later than January 31, 2002, or (vi) such
securities shall have ceased to be outstanding.
"Registration Expenses" means all out-of-pocket expenses incident to
any Demand Registration, including, without limitation incident to Wireless'
performance of or compliance with this Agreement, and including, without
limitation, all registration and filing fees, third party fees and expenses of
compliance with securities or blue sky laws, printing expenses, messenger and
delivery expenses, and fees and disbursements of counsel for Wireless and all
independent certified public accountants and underwriters.
"Rule 144" means Rule 144 under the Securities Act (or any similar
rule then in force).
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
2. Demand Registrations.
(a) Requests for Registration of Registrable Securities. Subject to
Section 2(b) below, commencing on the date hereof, AT&T may request
registration, whether underwritten or otherwise, under the Securities Act
of all or part of the Registrable Securities held by AT&T; on Form S-1 or
any similar long-form registration (collectively, "Long-Form
Registrations") or, if available, on Form S-2 or S-3 or any similar
short-form registration ("Short-Form Registrations"). Each request for a
Long-Form Registration or Short-Form Registration shall specify the
approximate number of Registrable Securities requested to be registered
and the anticipated price range for such offering. All registrations
requested pursuant to this Section 2(a) are referred to herein as "Demand
Registrations."
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(b) Demand Registrations.
(i) Number. AT&T shall be entitled to request up to two Demand
Registrations with respect to the Registrable Securities held by AT&T.
A registration will not count as a Demand Registration hereunder until
such registration has become effective and unless AT&T is able to
register at least 50% of the Registrable Securities requested to be
included in such registration. AT&T may withdraw any request for
registration prior to the time the registration statement is declared
effective and in such event that registration will not be counted as a
Demand Registration for purposes hereof. In addition, the registration
of Shares contemplated by the Registration Statement filed with the
SEC on May 8, 2001 (the "Debt for Equity Registration") shall not be
included in determining the number of permitted registrations
hereunder so long as such registration is effected substantially as
contemplated by the Debt for Equity Registration Statement (including
any amendment thereto) that has been filed as of the date of this
Agreement. Wireless agrees to cooperate in connection with the
transactions contemplated by the Debt for Equity Registration and to
use all reasonable efforts to permit the issuance and sale of the
securities registered thereunder.
(ii) Suspension Period. With respect to any Demand Registration,
Wireless shall be entitled not to file a registration statement, or if
a registration has been filed, to cause such registration statement to
be withdrawn and/or the effectiveness of such registration statement
terminated, for a period not to exceed 90 days in any three-month
period or for three periods not to exceed an aggregate of 150 days in
any twelve-month period (each, a "Suspension Period") for valid
business reasons, to be determined by Wireless in its sole reasonable
judgment, including, without limitation, the acquisition or
divestiture of assets, financings, public filings with the SEC,
pending corporate developments and similar events. Wireless shall
provide notice of any Suspension Period to AT&T. The foregoing
notwithstanding, with respect to one Demand Registration only, if AT&T
makes a request for such Demand Registration during the period from
October 15, 2001 through January 15, 2002, Wireless shall not have the
right under this paragraph (ii) to invoke a Suspension Period and
accordingly to withdraw or terminate such registration or to not file
such registration statement during the period from and including
November 1, 2001 through and including January 31, 2002 (the
"No-Black-Out Period") and, with respect to any Registrable Securities
subject to such Demand Registration made during such period, clauses
(iii) and (v) of the definition of Registrable Securities shall not
apply.
(iii) Registration Expenses. AT&T shall pay, reimburse and
indemnify Wireless for all Registration Expenses.
(c) Short-Form Registrations. Demand Registrations will be Short-Form
Registrations whenever Wireless is permitted to use any applicable short
form. After Wireless has become subject to the reporting requirements of
the Exchange Act, Wireless will use all reasonable efforts to make
Short-Form Registration available for the sale of Registrable Securities.
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(d) Priority on Demand Registrations. Wireless will not include in any
Long-Form Registration or Short-Form Registration regarding Registrable
Securities any securities that are not Registrable Securities without the
prior written consent of AT&T. If a Long-Form Registration or a Short-Form
Registration regarding Registrable Securities is an underwritten offering
and the lead managing underwriter advises Wireless in writing (with a copy
to AT&T) that, in the opinion of such lead managing underwriter, the
number or class of Registrable Securities and, if permitted hereunder,
other securities requested to be included in such offering, exceeds the
number or class of Registrable Securities and other securities, if any,
which can be sold therein without adversely affecting the marketability of
the offering, Wireless will exclude from such registration (i) first, any
securities that are not Registrable Securities and (ii) second,
Registrable Securities.
(e) Selection of Underwriters. In the case of a Demand Registration for an
underwritten offering made pursuant to the terms and conditions of this
Agreement by AT&T, AT&T shall have the right to select the lead managing
underwriter for such offering, subject to Wireless's consent, which shall
not be unreasonably withheld.
(f) 415 Registrations. If required in connection with the issuance or sale
of any Convertible Securities, AT&T will be entitled to request a
registration pursuant to Rule 415 under the Securities Act, to the extent
required in connection with such Convertible Securities (a "415
Registration"). As promptly as practicable and in any event within 30 days
after Wireless receives written notice of a request for a 415
Registration, Wireless shall file with the SEC a registration statement
under the Securities Act for the 415 Registration. Wireless shall use all
reasonable efforts to cause the 415 Registration to be declared effective
under the Securities Act as soon as practical after filing and, once
effective, Wireless shall (subject to the provisions of clause (ii) below)
cause such 415 Registration to remain effective for such time period as is
specified in such request, but for no time period longer than the period
ending on the earlier of (i) the three month and one day anniversary of
the Separation, or (ii) the date on which all Registrable Securities have
been sold pursuant to the 415 Registration.
3. Holdback Agreements.
(a) Wireless agrees (i) not to effect any public sale or distribution of
its equity securities, or any securities convertible into or exchangeable
or exercisable for such securities, during the seven days prior to and
during the 90-day period beginning on the effective date of any
underwritten Demand Registration (including any 415 Registration relating
to Convertible Securities) (except as part of such underwritten
registration or pursuant to registrations on Forms S-4 or S-8 or any
successor forms); and (ii) except with the prior written consent of AT&T,
such consent not to be withheld unless AT&T intends to, or in good faith
believes that it is reasonably likely to, request a Demand Registration
that could reasonably be expected to be in registration or become
effective during the No-Black-Out Period, to not file during the
No-Black-Out Period any registration statement (except as part of a Demand
Registration or pursuant to registrations on Forms S-4 or S-8 or any
successor forms) relating to the public sale or distribution of its equity
securities, or any securities convertible into or exchangeable or
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exercisable for such securities, and to withdraw and terminate any such
registration statement as may have been filed or be in effect as of
November 1, 2001 with respect to which the securities registered
thereunder have not been sold.
4. Registration Procedures. In connection with the Debt for Equity Registration
and whenever a Demand Registration has been requested pursuant to this
Agreement, Wireless will use all reasonable efforts to effect the registration
and the sale of such Registrable Securities in accordance with the intended
method of disposition thereof, and pursuant thereto Wireless will as
expeditiously as possible:
(a) prepare and file with the SEC a registration statement with respect to
such Registrable Securities as promptly as practicable and in any event
within 30 days of the request and use all reasonable efforts to cause such
registration statement to become effective;
(b) prepare and file with the SEC such amendments and supplements to such
registration statement and the prospectus used in connection therewith as
may be necessary to keep such registration statement effective for a
period of not less than 30 days (or such other period as may be applicable
pursuant to this Agreement in accordance with any 415 Registration) and
comply with the provisions of the Securities Act with respect to the
disposition of all securities covered by such registration statement
during such period in accordance with the intended methods of disposition
by AT&T set forth in such registration statement;
(c) furnish to AT&T such number of copies of such registration statement,
each amendment and supplement thereto, the prospectus included in such
registration statement (including each preliminary prospectus) and such
other documents as AT&T may request in order to facilitate the disposition
of the Registrable Securities owned by AT&T;
(d) use all reasonable efforts to register or qualify such Registrable
Securities under such other securities or blue sky laws of such
jurisdictions as AT&T reasonably requests and do any and all other acts
and things which may be reasonably necessary or advisable to enable AT&T
to consummate the disposition in such jurisdictions of the Registrable
Securities owned by AT&T; provided, that Wireless will not be required to
(i) qualify generally to do business in any jurisdiction where it would
not otherwise be required to qualify but for this subsection, (ii) subject
itself to taxation in any such jurisdiction, or (iii) consent to general
service of process (i.e., service of process which is not limited solely
to securities law violations) in any such jurisdiction;
(e) notify AT&T at any time when a prospectus relating to Registrable
Securities is required to be delivered under the Securities Act, of the
happening of any event as a result of which the prospectus included in
such registration statement contains an untrue statement of a material
fact or omits any material fact necessary to make the statements therein
not misleading, and, at the request of AT&T, Wireless will promptly
prepare a supplement or amendment to such prospectus so that, as
thereafter delivered to the purchasers of such Registrable Securities,
such prospectus will not contain an untrue
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statement of a material fact or omit to state any material fact necessary
to make the statements therein not misleading;
(f) notify AT&T (A) when the prospectus or any prospectus supplement or
post-effective amendment included in such registration statement has been
filed, and, with respect to any registration statement or any
post-effective amendment thereto, when the same has become effective, (B)
of any request by the SEC for amendments to such registration statement or
amendments or supplements to the prospectus or for additional information
relating thereto, and (C) of the issuance by the SEC of any stop order
suspending the effectiveness of the registration statement under the
Securities Act or of the suspension by any state securities commission of
the qualification of such Registrable Securities, as applicable, for
offering or sale in any jurisdiction, or the initiation of any proceeding
for any of the preceding purposes;
(g) cause all such Registrable Securities to be listed on each securities
exchange on which similar securities issued by Wireless are then listed;
(h) provide a transfer agent and registrar for all such Registrable
Securities not later than the effective date of such registration
statement;
(i) enter into such customary agreements (including underwriting
agreements containing such representations and warranties by Wireless and
such other terms, including indemnity, as are customarily contained in
underwriting agreements entered into by AT&T with respect to underwritten
offerings of AT&T securities of this type) and take all such other actions
as the underwriters, if any, reasonably request in order to expedite or
facilitate the disposition of such Registrable Securities;
(j) make available for inspection by AT&T, any underwriter participating
in any disposition pursuant to such registration statement and any
attorney, accountant or other agent retained by AT&T or any underwriter,
all financial and other records, pertinent corporate documents and
properties of Wireless, and cause the managers, officers, members,
employees and independent accountants of Wireless to supply all
information reasonably requested by AT&T, any underwriter, attorney,
accountant or agent in connection with such registration statement;
(k) otherwise use all reasonable efforts to comply with all applicable
rules and regulations of the SEC, and make available to its security
holders, as soon as reasonably practicable, an earnings statement covering
the period of at least twelve months beginning with the first day of the
first full calendar quarter of Wireless after the effective date of the
registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and Rule 158 promulgated
thereunder;
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the
qualification of any securities included in such registration statement
for sale in any jurisdiction, Wireless will use all reasonable efforts
promptly to obtain the withdrawal of such order;
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(m) use all reasonable efforts to cause such Registrable Securities
covered by such registration statement to be registered with or approved
by such other governmental agencies or authorities as may be necessary to
enable AT&T to consummate the disposition of such Registrable Securities;
(n) obtain a "cold comfort" letter from the independent public accountants
of Wireless and opinions of counsel to Wireless in each case in customary
form and covering such matters of the type customarily covered by "cold
comfort" letters and opinions as AT&T reasonably requests; and
(o) otherwise facilitate such registration and related offering.
5. Indemnification.
(a) Wireless agrees to indemnify (i) AT&T, (ii) AT&T's officers,
directors, agents, and representatives, and (iii) each Person who controls
(within the meaning of the Securities Act) AT&T against all losses,
claims, damages, liabilities, and expenses arising out of or based upon
any untrue or alleged untrue statement of material fact contained in any
registration statement, prospectus, or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse AT&T and
such officers, directors, agents, and representatives, or controlling
Person for any legal or other expenses reasonably incurred by AT&T and
such officers, directors, agents, and representatives, or controlling
Person in connection with the investigation or defense of such loss,
claim, damage, liability or expense, except insofar as the same are caused
by or contained in any information furnished in writing to Wireless by
AT&T expressly for use therein or by AT&T's failure to deliver a copy of
the registration statement or prospectus or any amendments or supplements
thereto after Wireless has furnished AT&T with a sufficient number of
copies of the same. In connection with an underwritten offering, Wireless
will indemnify such underwriters, their officers, partners and directors,
and each Person who controls such underwriters (within the meaning of the
Securities Act) to the same extent as provided above with respect to the
indemnification of AT&T.
(b) AT&T will furnish to Wireless in writing such information as Wireless
reasonably requests for use in connection with any registration statement
or prospectus and will indemnify Wireless in connection with any
registration of Registrable Securities, and its officers, directors,
agents, and representatives and each Person who controls Wireless against
any losses, claims, damages, liabilities and expenses resulting from any
untrue or alleged untrue statement of material fact contained in such
registration statement, prospectus or preliminary prospectus or any
amendment thereof or supplement thereto or any omission or alleged
omission of a material fact required to be stated therein or necessary to
make the statements therein not misleading, but only to the extent that
such untrue statement or omission is contained in any information or
affidavit so furnished in writing by AT&T.
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(c) Any Person entitled to indemnification hereunder will (i) give prompt
written notice to the indemnifying party of any claim with respect to
which it seeks indemnification and (ii) unless in such indemnified party's
reasonable judgment a conflict of interest between such indemnified and
indemnifying parties may exist with respect to such claim, permit such
indemnifying party to assume the defense of such claim with counsel
reasonably satisfactory to the indemnified party. If such defense is
assumed, the indemnifying party will not be subject to any liability for
any settlement made by the indemnified party without its consent (but such
consent will not be unreasonably withheld). An indemnifying party who is
not entitled to, or elects not to, assume the defense of a claim will not
be obligated to pay the fees and expenses of more than one counsel for all
parties indemnified by such indemnifying party with respect to such claim,
unless in the reasonable judgment of any indemnified party a conflict of
interest may exist between such indemnified party and any other of such
indemnified parties with respect to such claim.
(d) The indemnification provided for under this Agreement will remain in
full force and effect regardless of any investigation made by or on behalf
of the indemnified party or any officers, directors, agents, and
representatives, or controlling Person of such indemnified party and will
survive the transfer of securities. Wireless, to the extent so liable,
also agrees to make such provisions, as are reasonably requested by any
indemnified party, for contribution to such party in the event the
indemnification provided by Wireless pursuant to the terms and conditions
of this Agreement is unavailable for any reason.
6. Rule 144 Reporting. With a view to making available to AT&T the benefits of
certain rules and regulations of the SEC which may permit the sale of the
Registrable Securities to the public without registration, Wireless agrees to
use all reasonable efforts to:
(a) make and keep current public information available, within the meaning
of Rule 144 or any similar or analogous rule promulgated under the
Securities Act, at all times after it has become subject to the reporting
requirements of the Exchange Act;
(b) file with the SEC, in a timely manner, all reports and other documents
required under the Securities Act and the Exchange Act (after Wireless has
become subject to such reporting requirements); and
(c) so long as any party hereto owns any Registrable Securities, furnish
to such Person forthwith upon request a written statement as to the
compliance by Wireless with the reporting requirements of said Rule 144
(at any time commencing 90 days after the effective date of the first
registration filed by Wireless for an offering of its securities to the
general public), the Securities Act and the Exchange Act (at any time
after it has become subject to such reporting requirements); a copy of its
most recent annual or quarterly report; and such other reports and
documents as such Person may reasonably request in availing itself of any
rule or regulation of the SEC allowing it to sell any such securities
without registration.
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7. Notices. All notices or other communications under this Agreement shall be in
writing and shall be deemed to be duly given as of the date delivered, mailed or
transmitted, and shall be effective upon receipt, if delivered personally,
mailed by registered or certified mail (postage prepaid, return receipt
requested) or delivered by a nationally recognized courier service to the
parties at the following address or sent by electronic transmission to the
telecopier numbers specified below:
If to AT&T, to: AT&T Corp.
000 Xxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Vice President-Law and
Corporate Secretary
Telecopier: (000) 000-0000
If to Wireless to: AT&T Wireless Services, Inc.
0000 000xx Xxxxxx XX, Xxxxxxxx 0
Xxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
Telecopier: (000) 000-0000
Any party may, by notice to the other parties, change the address to which such
notices are to be given.
8. Debt for Equity Registration Exchange Agreement. Wireless agrees that it
will, promptly upon the request of AT&T, execute the Exchange Agreement and, as
and to the extent provided for therein, become a party thereto. The term
"Exchange Agreement" means an Exchange Agreement, between AT&T and one or more
purchasers of Shares from AT&T in connection with the Debt for Equity
Registration, substantially in the form provided to Wireless and to the Internal
Revenue Service prior to the date hereof, with such changes as do not affect
Wireless or such changes as do affect Wireless as to which Wireless consents,
such consent not to be withheld unreasonably.
9. Miscellaneous.
(a) Remedies. Any Person having rights under any provision of this
Agreement will be entitled to enforce such rights specifically to recover
damages caused by reason of any breach of any provision of this Agreement and to
exercise all other rights granted by law. The parties hereto agree and
acknowledge that money damages may not be an adequate remedy for any breach of
the provisions of this Agreement and that any party may in its sole discretion
apply to any court of law or equity of competent jurisdiction (without posting
any bond or other security) for specific performance and for other injunctive
relief in order to enforce or prevent violation of the provisions of this
Agreement.
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(b) Amendments and Waivers. Except as otherwise provided herein, the
provisions of this Agreement may be amended or waived only upon the prior
written consent of the parties hereto.
(c) Successors and Assigns. Neither the rights nor the obligations
of any party may be assigned or delegated without the prior written consent of
the other party hereto; provided that, the foregoing notwithstanding, whether or
not any express assignment has been made, the provisions of this Agreement which
are for the benefit of AT&T are for the benefit of, and enforceable by AT&T on
behalf of, any subsequent holder of Registrable Securities that is at such time
a wholly-owned direct or indirect subsidiary of AT&T.
(d) Severability. Whenever possible, each provision of this
Agreement will be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision will be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of this Agreement.
(e) Counterparts. This Agreement may be executed simultaneously in
two or more counterparts, any one of which need not contain the signatures of
more than one party, but all such counterparts taken together will constitute
one and the same Agreement.
(f) Descriptive Headings. The descriptive headings of this
Agreement are inserted for convenience only and do not constitute a part of
this Agreement.
(g) GOVERNING LAW. ALL ISSUES AND QUESTIONS CONCERNING THE
APPLICATION, CONSTRUCTION, VALIDITY, INTERPRETATION AND ENFORCEMENT OF THIS
AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL
LAWS OF THE STATE OF DELAWARE WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW OR
CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR ANY OTHER
JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION
OTHER THAN THE STATE OF DELAWARE.
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IN WITNESS WHEREOF, the parties hereto have executed this
Registration Rights Agreement as of the date first above written.
AT&T Corp.
By:
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Name:
Title.
AT&T Wireless Services, Inc.
By:
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Name:
Title:
[Signature Page to Registration Rights Agreement]
