EXHIBIT 7
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.
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
-2-
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
-3-
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:
-4-
"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.
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:
-5-
(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
-6-
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
-7-
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
-8-
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).
-9-
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
-10-
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
-11-
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
-12-
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
-13-
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.
-14-
(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
-15-
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
-16-
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
-17-
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
-18-
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
-19-
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:
-20-
(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
-21-
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.
* * * *
-22-
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: _________________________________
Name:
Title:
NTT DOCOMO, INC.
By: _________________________________
Name:
Title:
-23-
SCHEDULE 4.1
***
[Schedule 4.1 text has been omitted and is the subject of a confidential
treatment request filed separately with the Commission.]
