NTT DOCOMO, INC.
Sanno Xxxx Xxxxx
00-0, Xxxxxx-xxx 0-xxxxx Xxxxxxx-xx
Xxxxx 100-1615
AT&T Wireless Services, Inc.
0000 000xx Xxxxxx X.X., Xxxxxxxx 0
Xxxxxxx, Xxxxxxxxxx 00000
January 27, 2004
Ladies and Gentlemen:
Reference is made to that certain Investor Agreement,
amended and restated on December 20, 2001 and further amended by Amendment No.
1 on December 26, 2002 (the "Investor Agreement"), by and between AT&T
Wireless Services, Inc., a Delaware corporation ("AT&T Wireless") and NTT
DoCoMo, Inc., a joint stock corporation organized and registered under the
laws of Japan ("DoCoMo").
In a memorandum dated January 21, 2004 from Xxxxxxx Xxxxx &
Co. ("Xxxxxxx Xxxxx"), DoCoMo was informed that AT&T Wireless desires to
invite DoCoMo to submit a proposal (an "Acquisition Proposal") in accordance
with procedures to be set forth in a letter from Xxxxxxx Xxxxx to DoCoMo and
other interested parties (the "Procedures"), a draft of which was attached to
the memorandum, subject to DoCoMo's agreement to waive certain rights under
Section 3.9 of the Investor Agreement.
As DoCoMo desires the opportunity to submit an Acquisition
Proposal to AT&T Wireless in accordance with the Procedures should it choose
to do so, DoCoMo hereby agrees, subject to the conditions set forth below, to
temporarily waive its right under Section 3.9 of the Investor Agreement to be
notified by AT&T Wireless of the proposed terms of any Acquisition Proposal
submitted by a Solicited Bidder (as defined below), including the identity of
such Solicited Bidder, or to be informed of material developments in the terms
of any Acquisition Proposal (the "Waiver"), for the period from the date of
this letter agreement through the earliest to occur of (a) the execution by
AT&T Wireless of a definitive agreement with respect to an Acquisition
Proposal, (b) the determination by the Board of Directors of AT&T Wireless to
terminate the process contemplated by the Procedures, and (c) the earlier to
occur of (x) 60 days following the date set for the submission of final
proposals in accordance with the Procedures (as it may be extended pursuant to
paragraph 2 below) and (y) April 15, 2004 (from the date hereof through such
earlier date, the "Waiver Period"). For purposes of this letter agreement, the
term "Solicited Bidder" shall mean any party that (x) is invited by or on
behalf of AT&T Wireless to submit a proposal in accordance with the Procedures
and (y) is a party to a confidentiality agreement with AT&T Wireless
containing confidentiality and standstill provisions that, for the duration of
the Waiver Period, are comparable in all material respects to the
confidentiality and standstill provisions contained in Section 3.6(a) of the
Investor Agreement; provided, that such party is in compliance with the terms
thereof. For the avoidance of doubt, the temporary waiver granted by DoCoMo
pursuant to this letter agreement shall not apply to any Proposed Transaction
(as such term is defined in the Investor Agreement) submitted by any party
that is not a Solicited Bidder.
The foregoing waiver by DoCoMo is conditioned upon and
subject to the agreement of AT&T Wireless hereby as follows (which shall
remain in effect only for the duration of the Waiver Period):
1. AT&T Wireless shall permit DoCoMo to participate in the
process contemplated by the Procedures and to submit an
Acquisition Proposal (and any revisions thereto) should it
determine to do so, and shall consider such Acquisition
Proposal (and any such revisions) in accordance with the
Procedures;
2. AT&T Wireless shall not enter into any letter of intent or
similar document or any contract, agreement or commitment
contemplating or otherwise relating to any Proposed
Transaction prior to February 13, 2004 (the date currently
contemplated to be set for the submission of final proposals
in accordance with the Procedures) or, if later, any new
date for the submission of final proposals communicated to
Solicited Bidders by or on behalf of AT&T Wireless during
the Waiver Period;
3. AT&T Wireless shall provide DoCoMo access to such documents
and information as is provided to other Solicited Bidders in
connection with its continuing due diligence of AT&T
Wireless;
4. In the event that AT&T Wireless permits any Solicited Bidder
to collaborate with any other Solicited Bidder or any other
third party (other than affiliates of such first Solicited
Bidder and other than financing sources) with respect to the
preparation or submission of any Acquisition Proposal during
the Waiver Period, AT&T Wireless will provide DoCoMo with
written notice of such permission (without identifying the
Solicited Bidders or other parties), and will consider
whether to grant similar permission to DoCoMo based on AT&T
Wireless's judgment as to whether granting DoCoMo such
permission would be reasonably likely to result in a
superior transaction for AT&T Wireless's shareholders;
5. AT&T Wireless agrees that DoCoMo may make public disclosure
of any Acquisition Proposals made by it pursuant to the
Procedures as and to the extent required by Section 13(d) of
the Securities Exchange Act of 1934, as amended, and the
rules and regulations thereunder, and acknowledges and
agrees that this letter agreement may be publicly disclosed
by DoCoMo and filed as an exhibit to an amendment to its
Schedule 13D to be filed with the Securities and Exchange
Commission;
6. AT&T Wireless represents to DoCoMo that prior to the date
hereof AT&T Wireless has not violated any of its obligations
under Section 3.9 of the Investor Agreement; and
7. AT&T Wireless shall be responsible for any breach of this
letter agreement by its Representatives (defined below).
In addition to any other remedies available to DoCoMo under
applicable law, in the event of a breach by AT&T Wireless of any of the
foregoing, DoCoMo shall no longer be deemed to have waived its rights under
Section 3.9 of the Investor Agreement as provided herein.
For purposes of this letter agreement, references to a party
shall include its directors, officers, employees, agents, advisors or other
representatives, including, without limitation, attorneys, accountants,
consultants, bankers and financial advisors ("Representatives").
AT&T Wireless acknowledges that, as of the date hereof,
DoCoMo has made no decision to submit any Acquisition Proposal and has no
obligation to do so, and DoCoMo expressly reserves the right to withdraw from
the process contemplated by the Procedures at any time should it determine not
to participate in such process (it being understood that any such withdrawal
shall not affect the limited waiver set forth herein).
THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF DELAWARE WITHOUT GIVING
EFFECT TO THE PRINCIPLES OF CONFLICT OF LAWS THEREOF. EACH PARTY HEREBY AGREES
AND CONSENTS TO PERSONAL JURISDICTION AND SERVICE IN ANY FEDERAL OR STATE
COURT WITHIN THE STATE OF DELAWARE HAVING SUBJECT MATTER JURISDICTION, FOR THE
PURPOSES OF ANY ACTION, SUIT OR PROCEEDING ARISING OUT OF OR RELATING TO THIS
AGREEMENT. VENUE FOR ANY ACTION TO ENFORCE OR INTERPRET THE PROVISIONS OF THIS
LETTER AGREEMENT SHALL BE PROPERLY LAID ONLY IN ANY STATE OR FEDERAL COURT IN
THE STATE OF DELAWARE.
It is further understood and agreed that money damages would
not be a sufficient remedy for any breach of this letter agreement by either
party and that the non-breaching party shall be entitled to equitable relief,
including injunction and specific performance, as a remedy for any such
breach. Such remedies shall not be deemed to be the exclusive remedies for a
breach of this letter agreement but shall be in addition to all other remedies
available at law or equity.
This letter agreement may be executed in two or more
counterparts, and by facsimile, all of which shall be considered one and the
same agreement and shall become effective when one or more counterparts have
been signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
Please acknowledge your agreement by executing this letter
agreement in counterpart and returning it to the undersigned.
Very truly yours,
NTT DOCOMO, INC.
By: /s/ Jun Tajima
-------------------------------
Name: Jun Tajima
Title: Managing Director Global
Business Dept.
AGREED, as of this 27th day of
January 2004, by:
AT&T WIRELESS SERVICES, INC.
By: /s/ Xxxxx Xxxxxxx
--------------------------------
Name: Xxxxx Xxxxxxx
Title: EVP Corporate Strategy &
Business Development
