EXHIBIT 5.1
AMENDMENT TO
RIGHTS AGREEMENT
AMENDMENT (the "Amendment"), dated as of February 17, 2004, to the Amended
and Restated Rights Agreement, dated as of September 1, 2002 (the "Rights
Agreement"), between AT&T Wireless Services, Inc., a Delaware corporation (the
"Company"), and Mellon Investor Services LLC, a New Jersey limited liability
company, as Rights Agent (the "Rights Agent").
RECITALS
WHEREAS, the Company and the Rights Agent have heretofore executed and
entered into the Rights Agreement.
WHEREAS, Cingular Wireless Corporation, a Delaware corporation
("Cingular"), Links I Corporation, a Delaware corporation and a wholly owned
subsidiary of Cingular (the "Merger Sub"), the Company, and the other parties
thereto contemplate entering into an Agreement and Plan of Merger, dated as of
February 17, 2004 (the "Merger Agreement"), pursuant to which the Merger Sub
will merge with and into the Company (the "Merger"). The Board of Directors of
the Company has approved the Merger Agreement.
WHEREAS, pursuant to Section 27 of the Rights Agreement, from time to time
the Company may, and the Rights Agent shall if the Company so directs, from time
to time supplement and amend the Rights Agreement.
WHEREAS, the Board of Directors of the Company has determined that an
amendment to the Rights Agreement as set forth herein is necessary and desirable
in connection with the foregoing and the Company desires to evidence such
amendment in writing.
WHEREAS, all acts and things necessary to make this Amendment a valid
agreement, enforceable according to its terms have been done and performed, and
the execution and delivery of this Amendment by the Company have been in all
respects duly authorized by the Company.
Accordingly, the parties agree as follows:
A. Amendment of Section 1. Section 1 of the Rights Agreement is hereby
amended and supplemented to add the following definitions in the appropriate
alphabetical locations:
"Cingular" shall mean Cingular Wireless Corporation, a Delaware
corporation.
"Merger Sub" shall mean Links I Corporation, a Delaware corporation and a
wholly owned subsidiary of Cingular.
"Merger" shall mean the "Merger" as such term is defined in the Merger
Agreement.
"Merger Agreement" shall mean the Agreement and Plan of Merger, dated as of
February 17, 2004, by and between the Company, Cingular, Merger Sub and the
other parties thereto, as it may be amended from time to time.
B. Amendment of the definition of "Acquiring Person". The definition of
"Acquiring Person" in Section 1(a) of the Rights Agreement is hereby amended and
supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, neither
Cingular, Merger Sub, the other parties to the Merger Agreement, nor any of
their Affiliates or Associates shall be deemed to be an Acquiring Person as a
result, directly or indirectly, of (i) the approval, execution, delivery or
performance of the Merger Agreement or (ii) the consummation of the Merger."
C. Amendment of the definition of "Distribution Date". The definition of
"Distribution Date" in Section 3(a) of the Rights Agreement is hereby amended
and supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Distribution Date shall not be deemed to have occurred solely as the result
of directly or indirectly, of (i) the approval, execution, delivery or
performance of the Merger Agreement, (ii) the consummation of the Merger,
(iii) the consummation of any other transaction contemplated by the Merger
Agreement, or (iv) the public announcement of any of the foregoing."
D. Amendment of the definition of "Shares Acquisition Date". The definition
of "Shares Acquisition Date" in Section 1(bb) of the Rights Agreement is hereby
amended and supplemented by adding the following sentence at the end thereof:
"Notwithstanding anything in this Rights Agreement to the contrary, a
Shares Acquisition Date shall not be deemed to have occurred solely as the
result directly or indirectly, of (i) the approval, execution, delivery or
performance of the Merger Agreement, (ii) the consummation of the Merger, or
(iii) the public announcement of any of the foregoing."
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E. Amendment of Section 3. Section 3 of the Rights Agreement is hereby
amended and supplemented to add the following sentence at the end thereof as a
new Section 3(d):
"Nothing in this Rights Agreement shall be construed to give any holder of
Rights or any other Person any legal or equitable rights, remedies or claims
under this Rights Agreement, including and not limited to Section 11 hereof,
by virtue of (i) the approval, execution, delivery or performance of the
Merger Agreement, (ii) the consummation of the Merger, or (iii) the public
announcement of any of the foregoing."
F. Amendment of Section 7(a). Section 7(a) of the Rights Agreement is
hereby amended and supplemented by deleting "(i) the close of business on July
9, 2010 (the "Final Expiration Date")" and replacing it with the following:
"(i) the earlier of (x) the close of business on July 9, 2010 and (y)
immediately prior to the Effective Time (as defined in the Merger Agreement)
(such earlier date, the "Final Expiration Date")"
G. Effectiveness. This Amendment shall be deemed effective as of the date
first written above, as if executed on such date. Except as amended hereby, the
Rights Agreement shall remain in full force and effect and shall be otherwise
unaffected hereby.
H. Miscellaneous. This Amendment shall be deemed to be a contract under the
laws of the State of Delaware and for all purposes shall be governed and
construed in accordance with the laws of such state applicable to contracts to
be made and performed entirely within such state. If any provision, covenant or
restriction of this Amendment is held by a court of competent jurisdiction or
other authority to be invalid, illegal or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Amendment shall remain in
full force and effect and shall in no way be effected, impaired or invalidated.
Except as otherwise expressly provided herein, or unless the context otherwise
requires, all terms used herein have the meanings assigned to them in the Rights
Agreement. The Rights Agent and the Company hereby waive any notice requirement
under the Rights Agreement pertaining to the matters covered by this Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed and attested, all as of the date and year first above written.
AT&T WIRELESS SERVICES, INC.
By: /s/ Xxxxxxx X. Xxxxxx
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Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President,
Corporate Secretary and
Associate General Counsel
MELLON INVESTOR SERVICES LLC
By: /s/ Xxxxxx X. Xxxxxx
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Name: Xxxxxx X. Xxxxxx
Title: Client Service Manager
