Exhibit 10.3
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WARRANT AGREEMENT
by and among
AT&T WIRELESS SERVICES, INC.,
NTT DOCOMO, INC.
and
AT&T CORP.
Dated as of December 20, 2000
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TABLE OF CONTENTS
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Page
1. DEFINITIONS...........................................................1
2. ORIGINAL ISSUE OF WARRANTS............................................7
2.1. Form of Warrant Certificates.................................7
2.2. Execution and Delivery of Warrant Certificates...............7
2.3. Securities Act and Other Compliance..........................8
3. UNDERLYING STOCK; EXERCISE PRICE AND WARRANT NUMBER; EXERCISE
OF WARRANTS AND EXPIRATION OF WARRANTS................................9
3.1. Underlying Stock.............................................9
3.2. Exercise Price and Warrant Number............................9
3.3. Exercise of Warrants; Method of Exercise....................10
3.4. Restrictions on Underlying Stock Issuable upon Exercise.....11
4. ADJUSTMENTS..........................................................12
4.1. Exercise Price and Warrant Number Adjustments...............12
4.2. Exercise Price Adjustments for Stapled Securities...........16
4.3. Adjustment for Fundamental Change...........................16
4.4 Statements on Warrant Certificates..........................17
4.5. No Fractional Shares........................................17
4.6. Dividend or Interest Reinvestment Plans.....................17
4.7. Determinations by the Board of Directors....................17
4.8. Adjustments in Connection with the Spin-Off.................18
5. WARRANT TRANSFER.....................................................18
5.1. Transferability of Warrants.................................18
5.2. Warrant Transfer Books......................................19
6. REPURCHASE AND REDEMPTION............................................20
6.1. Redemption..................................................20
6.2. Repurchase..................................................20
7. NO VOTING RIGHTS.....................................................21
7.1. No Voting Rights............................................21
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8. COVENANTS............................................................21
8.1. Reservation of Underlying Stock for Issuance
on Exercise of Warrants.....................................21
9. MISCELLANEOUS........................................................21
9.1. Payment of Taxes............................................21
9.2. Surrender of Certificates...................................22
9.3. Mutilated, Destroyed, Lost and Stolen Warrant Certificates..22
9.4. Notices.....................................................23
9.5. Amendments; Waiver..........................................23
9.6. Successors and Assigns......................................23
9.7. Governing Law...............................................23
9.8. Arbitration.................................................23
9.9 Entire Agreement............................................25
9.10. Severability................................................25
9.11. Submission to Jurisdiction; Waivers.........................25
9.12. Waiver of Immunity..........................................26
9.13. Counterparts................................................26
9.14. Interpretation..............................................26
9.15. Termination as to AT&T......................................26
9.16. Substitution for AT&T Wireless..............................27
9.17 Waiver of Jury Trial........................................27
9.18 Effectiveness of this Agreement.............................27
9.19 No Third Party Beneficiaries................................27
EXHIBIT A - Form of Warrant Certificate (New Tracking Stock)
EXHIBIT B - Form of Warrant Certificate (Current Wireless Tracking Stock)
EXHIBIT C - Form of Warrant Certificate (AT&T Wireless Common Stock)
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WARRANT AGREEMENT
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WARRANT AGREEMENT (this "Agreement"), by and among AT&T Corp., a New
York corporation ("AT&T"), AT&T Wireless Services, Inc., a Delaware corporation
and a wholly-owned subsidiary of AT&T ("AT&T Wireless"), and NTT DoCoMo, Inc., a
company incorporated under the laws of Japan ("DoCoMo"), dated as of December
20, 2000, but effective and binding upon the parties only as specified in
Section 9.18.
WHEREAS, AT&T, AT&T Wireless and DoCoMo have entered into a Letter
Agreement, dated November 30, 2000 (including the Term Sheet and other schedules
and attachments thereto, the "Letter Agreement"), that sets forth the agreements
among the parties for an investment by DoCoMo in the Wireless Group and, after
the Spin-off, in AT&T Wireless, and a related mobile multimedia alliance;
WHEREAS, AT&T, AT&T Wireless and DoCoMo have entered into a Securities
Purchase Agreement, dated as of December 20, 2000 (as it may be amended from
time to time, the "Purchase Agreement"), pursuant to which, among other things,
AT&T Wireless is issuing and selling to DoCoMo, and DoCoMo is purchasing from
AT&T Wireless, 83,496.546 warrants (the "Warrants"), evidenced by a certificate
in the form attached hereto as Exhibit A (the "Warrant Certificate"), each
Warrant entitling DoCoMo to purchase one share of New Tracking Stock at $17,500
per share, subject to the terms and conditions hereof and thereof, and subject
to adjustment or exchange as provided herein;
WHEREAS, the Letter Agreement contemplates that the agreements
contained therein would be superseded by definitive agreements, including (1)
the Purchase Agreement, (2) the Investor Agreement and (3) this Agreement; and
WHEREAS, AT&T Wireless, DoCoMo and AT&T desire to establish in this
Agreement certain terms and conditions concerning the Warrants.
NOW, THEREFORE, in consideration of the foregoing and for the purpose
of defining the terms and provisions of the Warrants and the respective rights
and obligations thereunder of the parties hereto, AT&T Wireless, DoCoMo and,
subject to Section 9.15, AT&T each hereby agrees as follows:
1. DEFINITIONS.
As used in this Agreement, the following terms shall have the
following meanings:
"Agreement" shall have the meaning assigned in the preamble hereto.
"Arbitration Claims" shall have the meaning assigned in Section 9.8.
"AT&T" shall have the meaning assigned in the preamble hereto.
"AT&T Wireless" shall have the meaning assigned in the preamble
hereto.
"AT&T Wireless Common Stock" shall mean the shares of common stock,
par value $.01 per share, of AT&T Wireless as of and following the Spin-off.
"Board of Directors" shall mean the Board of Directors of AT&T
Wireless, unless the context relates to New Tracking Stock or Current Wireless
Tracking Stock, in which case such term shall mean the Board of Directors of
AT&T (and including, in each case, any committee of such Board of Directors duly
authorized to act on behalf of such Board of Directors).
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of AT&T Wireless to have been duly adopted
by the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to DoCoMo promptly following adoption of such
resolutions.
"Business Day" shall mean any day other than a Saturday, Sunday or a
legal holiday in New York City or Tokyo, Japan, or any other day on which
commercial banks in those locations are authorized or required by law or
government decree to close.
"Certificate of Amendment" shall mean the Certificate of Amendment
creating the New Tracking Stock, in the form set forth as Exhibit A to the
Purchase Agreement.
"Closing Date" shall have the meaning assigned in the Purchase
Agreement.
"Closing Price" of any Underlying Stock on any day shall mean the last
reported per share sale price, regular way, of the Underlying Stock on such day,
or, in case no such sale takes place on such day, the average of the reported
closing per share bid and asked prices, regular way, of the Underlying Stock on
such day, in each case on the New York Stock Exchange, Inc. or, if the
Underlying Stock is not listed or admitted to trading on the New York Stock
Exchange, Inc., on the principal national securities exchange or quotation
system on which the Underlying Stock is listed or admitted to trading or quoted,
or, if the Underlying Stock is not listed or admitted to trading or quoted on
any national securities exchange or quotation system, the average of the closing
per share bid and asked prices of the Underlying Stock on such day in the
over-the-counter market as reported by a generally accepted national quotation
service or, if not so available in such manner, as furnished by any New York
Stock Exchange, Inc. member firm selected from time to time by the Board of
Directors for that purpose or, if not so available in such manner, as otherwise
determined in good faith by the Board of Directors (whose good faith
determination shall be conclusive and binding and described in a Board
Resolution).
"Conversion Rate Adjustment" shall have the meaning assigned in
Section 4.1.
"Corporate Office" shall mean the principal office of AT&T Wireless at
which at any particular time its business shall be administered, which at the
date hereof is 7277 164th Avenue, Northeast, Redmond, Washington 98501.
"Cost of Carry" shall have the meaning assigned in the Investor
Agreement.
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"Current Market Price" on any date in question shall mean the average
of the daily Closing Prices for the relevant class of Underlying Stock for the
20 consecutive Trading Days ending on the day before the date in question.
"Current Wireless Tracking Stock" shall mean Wireless Group Common
Stock, par value $1.00 per share, of AT&T.
"Designee" shall have the meaning assigned in Section 5.1(a). Each
Person that is a Designee at any relevant time shall be deemed to be a party to
this Agreement for all purposes hereof.
"Dividend Reinvestment Plan" shall mean a plan allowing holders of
Underlying Stock to reinvest their cash dividends to purchase additional shares
of Underlying Stock (or allowing holders of Underlying Stock to reinvest their
cash dividends and invest additional cash to purchase additional shares of
Underlying Stock), on terms and conditions that are, in the good faith judgment
of the Board of Directors (which good faith judgment shall be conclusive and
described in a resolution of the Board of Directors), conventional for plans of
such type.
"DoCoMo" shall have the meaning assigned in the preamble hereto. For
purposes of any provision hereof relating to the ownership of Warrants and the
rights and obligations attendant thereto, the term "DoCoMo" shall also include
any Person that is a Designee at the relevant time, became such in accordance
with Section 5.1(a) hereof, and has executed and is a party to this Agreement.
"Economic Interests" in AT&T Wireless or the Wireless Group shall have
the meaning assigned in the Investor Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, or any
successor federal statute, and the rules and regulations promulgated thereunder,
all as amended, and as the same may be in effect from time to time.
"Exchange Offer" shall have the meaning assigned in the Investor
Agreement.
"Exercise Price" shall have the meaning assigned in Section 3.2
subject to adjustment from time to time as set forth herein.
"Expiration Date" shall mean the earlier of (a) the fifth anniversary
of the Issue Date (or if such day is not a Trading Day, the next succeeding
Trading Day) or (b) the redemption, cancellation or repurchase of the Warrants.
"Fundamental Change" shall mean any transaction or event pursuant to
which all or substantially all of the relevant class of Underlying Stock shall
be exchanged for, converted into or acquired for or constitute the right to
receive securities, cash or other property (whether by means of a tender or
exchange offer, redemption, reclassification, consolidation, merger, sale or
other disposition of all or substantially all of the assets of the Issuer,
compulsory share exchange, liquidation or otherwise); provided that none of the
following shall constitute a Fundamental Change: (a) the conversion of all or
any shares of New Tracking Stock
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into shares of Current Wireless Tracking Stock, (b) the conversion or redemption
of Current Wireless Tracking Stock into or in exchange for AT&T Wireless Common
Stock in the Spin-off, (c) the conversion of AT&T's Retained Wireless Interest
into any tracking or direct equity interest in AT&T Wireless, (d) the Exchange
Offer, or (e) the Spin-off and the transactions contemplated thereby. In the
case of a Fundamental Change involving more than one such transaction or event,
for purposes of adjusting exercise rights as set forth herein, such Fundamental
Change shall be deemed to have occurred when substantially all of the Underlying
Stock shall be exchanged for, converted into or acquired for or constitute the
right to receive securities, cash or other property, but the adjustment shall be
based upon the highest weighted average of consideration per share that a holder
of Underlying Stock could have received in such transactions or events as a
result of which more than 50% of the Underlying Stock shall have been exchanged
for, converted into or acquired for or constitute the right to receive
securities, cash or other property.
"Holder" shall mean a person in whose name a Warrant is registered in
the Warrant Transfer Books, as provided herein.
"Investor Agreement" shall mean the Investor Agreement, dated as of
December 20, 2000, by and among AT&T Wireless, DoCoMo and AT&T.
"Issue Date" shall mean the date on which the Warrants are issued,
which shall be the Closing Date.
"Issuer" shall mean AT&T, with respect to New Tracking Stock and
Current Wireless Tracking Stock, and AT&T Wireless, with respect to AT&T
Wireless Common Stock, as the case may be.
"Letter Agreement" shall have the meaning assigned in the recitals
hereto.
"New Tracking Stock" shall mean shares of Wireless Group Preferred
Tracking Stock, par value $1.00 per share, of AT&T having the terms set forth in
the Certificate of Amendment.
"No Spin-off Right" shall have the meaning assigned in the Investor
Agreement.
"Number of Shares" of any class of Underlying Stock (i) for New
Tracking Stock or AT&T Wireless Common Stock, shall mean the number of shares of
such class of stock issued and outstanding at the relevant time and not held in
treasury, and (ii) for Current Wireless Tracking Stock, shall mean the
denominator of the Wireless Group Allocation Fraction at the relevant time.
"Ordinary Distribution Amount" shall mean, in connection with a
distribution by AT&T or AT&T Wireless, by dividend or otherwise, to all or
substantially all holders of any class of Underlying Stock payable exclusively
in cash (other than pursuant to a Fundamental Change), as contemplated by
Section 4.1(e), the annualized amount (e.g., for a regular quarterly dividend,
four times such amount) of the regular cash dividend paid on each share of such
class of Underlying Stock on the immediately preceding regular dividend payment
date with respect
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thereto multiplied by the Number of Shares of such class of Underlying Stock
outstanding on the date fixed for such distribution.
"Per Share Distribution Amount" shall mean, with respect to any
distribution, (i) the cash paid in such distribution less the Ordinary
Distribution Amount divided by (ii) the Number of Shares of Underlying Stock of
the relevant class on which such distribution is paid.
"Per Share Premium Amount" shall mean, with respect to any tender or
exchange offer, (i) the Premium Amount paid as part of such tender or exchange
offer divided by (ii) the Post-Tender Offer Number of Underlying Shares.
"Permitted Redemption" shall have the meaning assigned in Section
6.1(a).
"Person" shall mean a legal person, including any individual,
corporation, company, partnership, joint venture, association, joint-stock
company, trust, limited liability company or unincorporated association or any
other entity or organization, including a government or any agency or political
subdivision thereof, or any other entity of whatever nature.
"Post-Tender Offer Number of Underlying Shares" shall mean, with
respect to any tender or exchange offer in respect of any class of Underlying
Stock, the Number of Shares of Underlying Stock outstanding at the close of
business on the date of expiration of such tender or exchange offer (before
giving effect to the acquisition of shares of Underlying Stock pursuant thereto)
minus the number of shares of such class of Underlying Stock acquired pursuant
thereto.
"Premium Amount" shall mean, with respect to any tender or exchange
offer, (i) the Tender Consideration paid in such tender or exchange offer minus
(ii) the product of the Current Market Price on the expiration date of such
tender or exchange offer multiplied by the number of shares of Underlying Stock
acquired pursuant to such tender or exchange offer.
"Pre-Spin Exercise Price" shall have the meaning assigned in Section
3.2(b).
"Pre-Spin Warrant Number" shall have the meaning assigned in Section
3.2(b).
"Purchase Agreement" shall have the meaning assigned in the recitals
hereto.
"Purchase Form" shall have the meaning assigned in Section 3.3(a).
"Purchase Price" shall have the meaning assigned in Section 3.3(a).
"Redemption Date" shall have the meaning assigned in Section 6.1(b).
"Related Agreements" shall mean the Purchase Agreement, the Investor
Agreement, that certain letter agreement, dated as of November 30, 2000,
executed and delivered among DoCoMo, AT&T and AT&T Wireless concurrently with
the execution and delivery of the Letter Agreement, that certain roaming side
letter, dated the date hereof,
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executed and delivered among DoCoMo, AT&T and AT&T Wireless (and any letters or
schedules referred to therein) and the Certificate of Amendment.
"Retained Wireless Interest" shall have the meaning assigned in the
Investor Agreement.
"Securities Act" shall mean the Securities Act of 1933, and any
similar or successor federal statute, and the rules and regulations promulgated
thereunder, all as amended, and as the same may be in effect from time to time.
"Separation Agreements" shall have the meaning assigned in the
Investor Agreement.
"Separation Event" shall mean in the context of Stapled Securities, a
redemption, termination of rights or other specified event that results in a
Stapled Security to trade independently of the security to which it was
previously attached.
"Spin-off" shall have the meaning assigned in the Investor Agreement.
For all purposes of this Agreement, the Spin-off shall not be a "transaction
contemplated by this Agreement."
"Spin-off Exchange Ratio" shall mean the number (which may be a
fraction) of shares of AT&T Wireless Common Stock into which or for which each
share of Current Wireless Tracking Stock is converted or redeemed and exchanged
in the Spin-off.
"Stapled Securities" shall mean securities issued under any plan or
agreement providing in substance that, until a Separation Event, (i) a specified
number of such securities will appertain to each share of Underlying Stock then
issued or to be issued in the future (including shares issued upon the exercise
of Warrants) and (ii) each such security will be evidenced or represented by the
certificate representing the share of Underlying Stock to which it appertains
and will automatically trade with such share.
"Subsidiary" means, with respect to any Person, any other Person more
than fifty percent (50%) of the shares of the voting stock or other voting
interests of which are owned or controlled, or the ability to select or elect
more than fifty percent (50%) of the directors or similar managers is held,
directly or indirectly, by such first Person or one or more of its Subsidiaries
or by such first Person and one or more of its Subsidiaries; provided, however,
that for so long as At Home or Liberty Media, as the case may be, has any public
stockholders (directly, or through a tracking stock or similar concept), At Home
or Liberty Media, as the case may be, and their respective Subsidiaries shall
not be treated as or deemed to be Subsidiaries of AT&T or of any of AT&T's
Subsidiaries or Affiliates for purposes hereof. A Subsidiary that is directly or
indirectly wholly owned by another Person except for directors' qualifying
shares shall be deemed wholly owned for the purposes of this Agreement.
"Technology Default Right" shall have the meaning assigned in the
Investor Agreement.
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"Tender Consideration" shall mean, with respect to any tender or
exchange offer, the aggregate of the cash plus the fair market value (as
determined in good faith by the Board of Directors, whose good faith
determination shall be conclusive and described in a resolution of the Board of
Directors) of all non-cash consideration paid in respect of such tender or
exchange offer.
"Trading Day" shall mean a day on which securities are traded on the
national securities exchange or quotation system or in the over-the-counter
market used to determine Closing Prices for the Underlying Stock.
"Transfer" shall have the meaning assigned in the Investor Agreement.
"Underlying Stock" shall have the meaning assigned in Section 3.1.
"Warrant Certificate" shall have the meaning assigned in the recitals
to this Agreement.
"Warrant Number" shall have the meaning assigned in Section 3.2,
subject to adjustment from time to time as set forth herein.
"Warrant Transfer Books" shall have the meaning assigned in Section
5.2(a).
"Warrants" shall have the meaning assigned in the recitals to this
Agreement. Where the context requires, the term shall include any Warrants
issued in exchange for the initially issued Warrants in accordance with the
provisions of this Agreement.
"Wireless Group" shall have the meaning assigned in the Certificate of
Incorporation of AT&T, as amended.
"Wireless Group Allocation Fraction" shall have the meaning assigned
in the Certificate of Incorporation of AT&T, as amended.
2. ORIGINAL ISSUE OF WARRANTS.
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2.1. Form of Warrant Certificates. The Warrant Certificates shall
initially be in registered form only and substantially in the form attached
hereto as Exhibit A, shall be dated the Issue Date and may have such legends and
endorsements typed, stamped, printed, lithographed or engraved thereon as
provided in Section 2.3 and as required by AT&T Wireless's certificate of
incorporation or as may be required to comply with any law or with any rule or
regulation pursuant thereto or with any rule or regulation of any securities
exchange on which the Warrants may be listed.
2.2. Execution and Delivery of Warrant Certificates. (a) On the Issue
Date, a single Warrant Certificate evidencing 83,496.546 Warrants shall be
executed by AT&T Wireless and delivered to DoCoMo. Any additional Warrant
Certificates that may be issued by AT&T Wireless in connection with the Transfer
of Warrants or the exchange or replacement of Warrant Certificates as provided
herein shall be executed on behalf of AT&T Wireless by any duly authorized
officer of AT&T Wireless, either manually or by facsimile signature printed
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thereon. In case any officer of AT&T Wireless whose signature shall have been
placed upon any of the Warrant Certificates shall cease to be such officer of
AT&T Wireless before delivery to DoCoMo, such Warrant Certificates may,
nevertheless, be issued and delivered with the same force and effect as though
such person had not ceased to be such officer of AT&T Wireless.
(b) Upon any change that may occur from time to time (including, but
not limited to, as a result of Transfer of Warrants to any Person other than
DoCoMo and its Designees, the conversion by DoCoMo of its shares of New Tracking
Stock into Current Wireless Tracking Stock, and the consummation of the
Spin-off) in the security constituting the Underlying Stock of any Warrant in
accordance with Section 3.1 hereof, AT&T Wireless shall promptly (but in any
event within five (5) Business Days of such change) issue a new Warrant
Certificate in registered form and substantially in the form attached hereto as
Exhibit B (if the Underlying Stock is Current Wireless Tracking Stock) or
Exhibit C (if the Underlying Stock is AT&T Wireless Common Stock), in
substitution for any Warrant Certificate that, as a result of such change,
refers to a security other than the security that is the Underlying Stock with
respect to such Warrant. Any such new Warrant Certificate shall indicate an
Exercise Price and Warrant Number calculated in accordance with Section 3.2
hereof.
(c) Each Warrant Certificate shall entitle the Holder thereof, subject
to the provisions of this Agreement and those set forth in the Warrant
Certificate, to purchase, for each Warrant represented thereby, a number of
shares of Underlying Stock equal to the Warrant Number; provided, however, that
the Exercise Price and Warrant Number shall be subject to adjustment as provided
in Section 4 hereof.
2.3. Securities Act and Other Compliance. (a) Each Warrant Certificate
shall bear the following legend:
THE WARRANTS EVIDENCED HEREBY AND ANY SHARES OF [INSERT
TITLE OF UNDERLYING STOCK] OR OTHER SECURITIES ISSUED ON
EXERCISE THEREOF HAVE NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED
EXCEPT (1) PURSUANT TO AN AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR (2)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND IN COMPLIANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS. PURSUANT TO SECTION 2.3 OF THE WARRANT
AGREEMENT UNDER WHICH THESE WARRANTS WERE ISSUED, AT&T
WIRELESS SERVICES, INC. ("AT&T WIRELESS") MAY REQUIRE, IN
CONNECTION WITH AND AS A CONDITION TO ANY PROPOSED
REGISTRATION OF TRANSFER OF ANY WARRANT CERTIFICATE, AN
OPINION OF COUNSEL STATING THAT THE PROPOSED TRANSFER OF
WARRANTS IS ENTITLED TO AN EXEMPTION FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT AND
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SUPPORTING CERTIFICATES AS TO FACTUAL MATTERS FROM THE
PROPOSED TRANSFEROR AND TRANSFEREE, ALL IN FORM AND
SUBSTANCE REASONABLY SATISFACTORY TO AT&T WIRELESS.
THE WARRANTS EVIDENCED HEREBY AND ANY SHARES OF UNDERLYING
STOCK OR OTHER SECURITIES ISSUED ON EXERCISE THEREOF ARE
SUBJECT TO CERTAIN TRANSFER RESTRICTIONS CONTAINED IN THE
WARRANT AGREEMENT, DATED AS OF DECEMBER 20, 2000 AND THE
INVESTOR AGREEMENT, DATED AS OF DECEMBER 20, 2000, AMONG
AT&T CORP., AT&T WIRELESS AND NTT DOCOMO, INC. AND ANY
TRANSFER OF THE WARRANTS EVIDENCED HEREBY OTHER THAN IN
ACCORDANCE WITH THE TERMS OF THIS WARRANT CERTIFICATE AND
THOSE AGREEMENTS IS NULL AND VOID.
(b) AT&T Wireless shall not register the Transfer of any Warrants
unless it has received evidence reasonably satisfactory in form and substance to
it that the proposed Transfer complies with this Agreement and the Investor
Agreement and is entitled to an exemption from the registration requirements of
the Securities Act. Such evidence may include in AT&T Wireless's discretion a
written opinion of its counsel stating that the proposed Transfer of Warrant
Certificates is entitled to an exemption from the registration requirements of
the Securities Act and supporting certifications as to factual matters from the
proposed transferor and transferee, all in form and substance reasonably
satisfactory to AT&T Wireless and the transferor.
3. UNDERLYING STOCK; EXERCISE PRICE AND WARRANT NUMBER; EXERCISE OF WARRANTS
AND EXPIRATION OF WARRANTS.
3.1. Underlying Stock. (a) Prior to consummation of the Spin-off, the
Underlying Stock shall be New Tracking Stock, except that (i) with respect to
any Warrant held by any Person other than DoCoMo or any of its Designees, and
(ii) with respect to any Warrants held by DoCoMo or any of its Designees
following conversion by DoCoMo or any of its Designees of any shares of New
Tracking Stock into shares of Current Wireless Tracking Stock, the Underlying
Stock shall be Current Wireless Tracking Stock.
(b) From and after consummation of the Spin-off, the Underlying Stock
shall be AT&T Wireless Common Stock.
3.2. Exercise Price and Warrant Number. Subject to the provisions of
this Agreement, each Holder of a Warrant or fraction thereof shall have the
right to purchase, upon exercise of each whole Warrant, the number (the "Warrant
Number") of shares of Underlying Stock at the exercise price per share (the
"Exercise Price") set forth below, in each case subject to adjustment as
provided in Section 4:
(a) if the Underlying Stock is New Tracking Stock, the Warrant Number
per whole Warrant shall initially be one, and the Exercise Price shall initially
be $17,500;
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(b) if the Underlying Stock is Current Wireless Tracking Stock, the
Warrant Number per whole Warrant shall initially be 500 (as adjusted in
accordance with Section 4, the "Pre-Spin Warrant Number"), and the Exercise
Price shall initially be $35 (as adjusted in accordance with Section 4, the
"Pre-Spin Exercise Price"); and
(c) if the Underlying Stock is AT&T Wireless Common Stock, the Warrant
Number shall initially be a number equal to the Pre-Spin Warrant Number
multiplied by the Spin-off Exchange Ratio, and the Exercise Price shall
initially be the Pre-Spin Exercise Price divided by the Spin-off Exchange Ratio
(rounded to the nearest cent).
3.3. Exercise of Warrants; Method of Exercise. (a) At any time after
the Issue Date, the Warrants may be exercised by the Holders thereof, in whole
or in part, at any time, or from time to time, but in no event later than 5:00
p.m., New York time on the Expiration Date, by presentation and surrender of the
Warrant Certificate evidencing such Warrants during any Business Day to AT&T
Wireless at the Corporate Office (or such other office or agency of AT&T
Wireless in the United States as it may designate by notice in writing to each
Holder at the address of such Holder appearing in the Warrant Transfer Books),
with the form on the reverse of or attached to the Warrant Certificate (the
"Purchase Form") duly executed, accompanied by payment of an amount equal to the
aggregate Exercise Price for the number of Warrants exercised as specified in
such Purchase Form (the "Purchase Price"). The Purchase Price shall be paid in
United States dollars by wire transfer of immediately available funds to an
account or accounts designated by AT&T Wireless from time to time (which
information may be obtained by contacting AT&T Wireless at the Corporate
Office).
(b) Upon exercise of a Warrant or fraction thereof and payment of the
Purchase Price in conformity with Section 3.3(a), AT&T Wireless shall as
promptly as practicable issue to the Holder of such Warrant certificate(s) for,
or other appropriate evidence of ownership of, the shares of Underlying Stock
(or other securities or property (including money)) to which such Holder is
entitled upon exercise of such Warrant surrendered (as specified in the Purchase
Form), registered or otherwise placed in, or payable to the order of, such name
or names as may be directed in writing by the Holder, and shall deliver such
certificates or other evidence of ownership and any other securities or property
(including any money) to the Holder, together with an amount in cash in lieu of
any fraction of a share as provided in Section 4.5, if applicable. Any such
certificate delivered shall bear appropriate legends as provided in Section 3.4.
(c) Upon receipt by AT&T Wireless of a Warrant Certificate surrendered
in proper form for exercise, together with the payment of the Purchase Price
therefor, in each case as provided by this Section 3.3, the Holder thereof shall
be deemed to be the holder of record of the shares of Underlying Stock (or other
securities or property (including money)) issuable upon such exercise of the
Warrants evidenced by such Warrant Certificate, effective as of 9:00 a.m., New
York time, on the date of such exercise, notwithstanding that the Warrant
Transfer Books shall then be closed or that certificates representing such
shares of Underlying Stock (or other securities or property (including money))
shall not then be actually delivered to the Holder.
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(d) In the event any Warrant Certificate is surrendered upon the
exercise of a portion, but not all, of the Warrants represented thereby, then
AT&T Wireless shall issue to such surrendering Holder a new Warrant Certificate,
in substitution of such surrendered Warrant Certificate, representing a number
of Warrants equal to the difference between the number of Warrants represented
by the Warrant Certificate so surrendered and the number of Warrants exercised
in the exercise giving rise to such surrender.
(e) Except to the extent AT&T Wireless has failed to perform its
obligations hereunder to be performed on or prior to the Expiration Date or
expressly provided to be performed after the Expiration Date, this Agreement
shall expire and all obligations set forth herein shall terminate at 5:00 p.m.,
New York time, on the Expiration Date.
3.4. Restrictions on Underlying Stock Issuable upon Exercise. (a) Each
share of Underlying Stock to be issued upon exercise of Warrants shall bear the
following legend:
THE SECURITIES EVIDENCED HEREBY HAVE NOT BEEN REGISTERED
UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE
"SECURITIES ACT") AND MAY NOT BE OFFERED, SOLD, PLEDGED OR
OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND IN COMPLIANCE WITH
ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS. THE ISSUER OF THESE
SECURITIES MAY REQUIRE, IN CONNECTION WITH AND AS A
CONDITION TO ANY PROPOSED TRANSFER OF THESE SECURITIES, AN
OPINION OF COUNSEL STATING THAT THE PROPOSED TRANSFER IS
ENTITLED TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS
OF THE SECURITIES ACT AND SUPPORTING CERTIFICATES AS TO
FACTUAL MATTERS FROM THE PROPOSED TRANSFEROR AND TRANSFEREE,
ALL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE
ISSUER OF THESE SECURITIES.
(b) In addition to the legend referred to in Section 3.4(a), each
share of Underlying Stock to be issued to DoCoMo or its Designees upon exercise
of Warrants shall bear the following legend:
THESE SECURITIES ARE SUBJECT TO CERTAIN TRANSFER
RESTRICTIONS CONTAINED IN THE INVESTOR AGREEMENT, DATED AS
OF DECEMBER 20, 2000 AMONG AT&T CORP., AT&T WIRELESS
SERVICES, INC. AND NTT DOCOMO, INC. AND ANY TRANSFER OF
THESE SECURITIES OTHER THAN IN ACCORDANCE WITH THE TERMS OF
THAT AGREEMENT IS NULL AND VOID.
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(c) The holder of any certificate(s) bearing any such legend
referencing restrictions under the Securities Act shall be entitled to receive
from AT&T Wireless (and, if applicable, AT&T shall make available to AT&T
Wireless for the purpose thereof) new certificates for a like number of shares
of such stock not bearing such legend upon the request of such holder and upon
(i) such time as the restrictions under the Investor Agreement are no longer
applicable, with respect to restrictions related to the Investor Agreement, and
(ii) delivery of an opinion of counsel to such holder, which opinion is
reasonably satisfactory in form and substance to AT&T or to AT&T Wireless, as
the case may be, and its counsel, that the restriction referenced in such legend
is no longer required in order to ensure compliance with the Securities Act.
(d) If shares of Underlying Stock to be issued upon exercise of
Warrants are to be registered in a name other than that of the Holder of such
Warrants, then the Person in whose name such shares of Underlying Stock are to
be registered must deliver to AT&T Wireless a certificate reasonably
satisfactory to AT&T Wireless and signed by such Person, as to compliance with
the restrictions on Transfer applicable to such Warrants. AT&T Wireless shall
not be required to register in a name other than that of the Holder shares of
Underlying Stock issued upon exercise of any such Warrants not so accompanied by
a properly completed certificate.
4. ADJUSTMENTS.
4.1. Exercise Price and Warrant Number Adjustments. The Exercise Price
and Warrant Number of each unexercised Warrant shall be subject to adjustment as
follows; provided that with respect to any Warrant at any time when the
Underlying Stock is New Tracking Stock, no adjustment shall be made if, as a
result of the event or occurrence that would otherwise give rise to an
adjustment pursuant to this Section 4.1, an adjustment shall have been (or is to
be) made to the Conversion Rate (as defined in the Certificate of Amendment) of
the New Tracking Stock in accordance with Paragraph 7(e) of the Certificate of
Amendment (a "Conversion Rate Adjustment"), which Conversion Rate Adjustment had
(or will have) a substantially equivalent economic effect to the adjustments
that would otherwise be required by this Section 4.1; and provided, further,
that if any such Conversion Rate Adjustment does not have a substantially
equivalent economic effect to the adjustments that would otherwise be required
by this Section 4.1, then any adjustment pursuant to this Section 4.1 shall be
limited such that the combined effect of the Conversion Rate Adjustment and the
adjustment pursuant to this Section 4.1 results in an economic effect that is
substantially equivalent to the economic effect that would have been achieved
pursuant to this Section 4.1 if there had not been (or were not to be) any
Conversion Rate Adjustment:
(a) In case the Issuer shall pay or make a dividend or other
distribution on any class of capital stock of the Issuer payable in shares of
Underlying Stock, the Exercise Price with respect to such Underlying Stock in
effect at the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Exercise Price by a fraction
of which the numerator shall be the Number of Shares of Underlying Stock
outstanding at the close of business on the date fixed for such determination
and the denominator shall be the sum of such Number of Shares of Underlying
Stock and the total number of shares constituting such
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dividend or other distribution of Underlying Stock, such reduction to become
effective immediately after the opening of business on the day following the
date fixed for such determination. (For the purposes of determining adjustments
to the Exercise Price as set forth herein, shares of Underlying Stock held in
the treasury of the Issuer, and any dividends or distributions in respect
thereof, shall be disregarded.)
(b) In case the Issuer shall issue rights or warrants to all or
substantially all holders of shares of Underlying Stock entitling them to
subscribe for or purchase shares of Underlying Stock at a price per share less
than the Current Market Price on the date fixed for the determination of
stockholders entitled to receive such rights or warrants (other than pursuant to
a distribution of rights under a shareholder rights plan of the Issuer in
customary form or a Dividend Reinvestment Plan or a distribution of Stapled
Securities), the Exercise Price with respect to such Underlying Stock in effect
at the opening of business on the day following the date fixed for such
determination shall be reduced by multiplying such Exercise Price by a fraction
of which (i) the numerator shall be the Number of Shares of Underlying Stock
outstanding at the close of business on the date fixed for such determination
plus a number of shares of Underlying Stock equal to (x) the aggregate
subscription or purchase price for the total number of shares of Underlying
Stock so offered for subscription or purchase divided by (y) such Current Market
Price and (ii) the denominator shall be the Number of Shares of Underlying Stock
outstanding at the close of business on the date fixed for such determination
plus the number of shares of Underlying Stock so offered for subscription or
purchase, such reduction to become effective immediately after the opening of
business on the day following the date fixed for such determination. In case any
rights or warrants referred to in this paragraph in respect of which an
adjustment shall have been made shall expire unexercised, the Exercise Price
shall be readjusted at the time of such expiration to the Exercise Price that
would have been in effect if no adjustment had been made on account of the
distribution or issuance of such expired rights or warrants.
(c) In case outstanding shares of Underlying Stock shall be subdivided
(including by split) into a greater number of shares of Underlying Stock, the
Exercise Price with respect to such Underlying Stock in effect at the opening of
business on the day following the day upon which such subdivision becomes
effective shall be proportionately reduced, and, conversely, in case outstanding
shares of Underlying Stock shall be combined into a smaller number of shares of
Underlying Stock (including by reverse split), the Exercise Price in effect at
the opening of business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the opening
of business on the day following the day upon which such subdivision or
combination becomes effective.
(d) In case the Issuer shall, by dividend or otherwise, distribute to
all or substantially all holders of shares of Underlying Stock evidences of
indebtedness, shares of capital stock of any class or series, other securities,
cash or assets (other than Stapled Securities or Underlying Stock, or rights or
warrants referred to in Section 4.1(b), and other than pursuant to a Fundamental
Change or a dividend or distribution payable exclusively in cash), the Exercise
Price with respect to such Underlying Stock in effect immediately prior to the
close of business on the date fixed for the payment of such distribution shall
be reduced by multiplying such Exercise Price by a fraction of which the
numerator shall be the Current Market Price of
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such Underlying Stock on the date fixed for such payment (appropriately adjusted
in the event the ex-dividend date for such dividend or distribution is prior to
the date fixed for payment) less the then fair market value (as determined in
good faith by the Board of Directors, whose good faith determination shall be
conclusive and described in a Board Resolution) of the portion of such evidences
of indebtedness, shares of capital stock, other securities, cash and assets
distributed per share of Underlying Stock and the denominator shall be such
Current Market Price of such Underlying Stock, such reduction to become
effective immediately prior to the opening of business on the day following the
date fixed for such payment. The Issuer shall use reasonable efforts to provide
Holders of Warrants with reasonable advance notice (which shall be at least 10
Business Days, if reasonably practicable, prior to the record date) of any event
that would give rise to an adjustment pursuant to this paragraph (d). If the
Board of Directors determines the fair market value of any distribution for
purposes of this paragraph by reference to the actual or when-issued trading
market for any securities comprising such distribution, it must in doing so
consider the prices in such market over the same period used in computing the
Current Market Price for such purposes.
(e) In case the Issuer shall, by dividend or otherwise, make a
distribution to all or substantially all holders of shares of Underlying Stock
payable exclusively in cash (other than pursuant to a Fundamental Change and
other than pursuant to any regular quarterly dividend policy that may be
established by a resolution adopted by the Board of Directors from time to
time), the Exercise Price with respect to such Underlying Stock in effect
immediately prior to the close of business on the date fixed for such payment
shall be reduced by multiplying such Exercise Price by a fraction of which the
numerator shall be the Current Market Price of such Underlying Stock on the date
fixed for such payment (appropriately adjusted in the event the ex-dividend date
for such dividend or distribution is prior to the date fixed for payment) less
the Per Share Distribution Amount paid in such distribution and the denominator
shall be such Current Market Price, such reduction to become effective
immediately prior to the opening of business on the day following the date fixed
for such payment. The Issuer shall use reasonable efforts to provide Holders of
Warrants with reasonable advance notice (which shall be at least 10 Business
Days, if reasonably practicable, prior to the record date) of any event that
would give rise to an adjustment pursuant to this paragraph (e).
(f) In case the Issuer or any Subsidiary of the Issuer shall
consummate a tender or exchange offer (other than an odd lot offer) for shares
of Underlying Stock involving consideration in excess of 105% of the Current
Market Price of such Underlying Stock as of the expiration of such tender or
exchange offer, the Exercise Price with respect to such Underlying Stock in
effect immediately prior to the close of business on the date of consummation of
such tender or exchange offer shall be reduced by multiplying such Exercise
Price by a fraction of which the numerator shall be such Current Market Price
less the Per Share Premium Amount paid in such tender or exchange offer and the
denominator shall be such Current Market Price, such reduction to become
effective immediately prior to the opening of business on the day following such
date of expiration.
(g) The Company may make such reductions in the Exercise Price, in
addition to those required by the foregoing paragraphs, as it considers to be
advisable to avoid or diminish any income tax to holders of Underlying Stock or
rights to purchase Underlying
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<PAGE>
Stock resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
(h) No adjustment in the Exercise Price shall be required unless such
adjustment would require an increase or decrease of at least 1% in the Exercise
Price; provided, however, that any adjustments which by reason of this paragraph
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment.
(i) Whenever there shall be any change in the Exercise Price as herein
provided, then there shall be an adjustment (rounded up to the nearest
thousandth in the case of a fraction of a ten-thousandth of .5 or greater and
rounded down to the nearest thousandth in the case of a fraction of less than a
ten-thousandth of .5) in the Warrant Number, which adjustment shall become
effective at the time such change in the Exercise Price becomes effective and
shall be made by multiplying the Warrant Number in effect immediately before
such change in the Exercise Price by a fraction the numerator of which is the
Exercise Price immediately before such change and the denominator of which is
the Exercise Price immediately after such changes.
(j) Whenever the Exercise Price is adjusted as herein provided:
(i) AT&T Wireless shall compute the adjusted Exercise Price
and shall prepare and shall keep on file a certificate signed by the
Treasurer of AT&T Wireless setting forth the adjusted Exercise Price
and showing in reasonable detail the facts upon which such adjustment
is based;
(ii) AT&T Wireless shall compute the adjusted Warrant Number
pursuant to Section 4.1(i) and shall prepare and shall keep on file a
certificate signed by the Treasurer of AT&T Wireless setting forth the
adjusted Warrant Number and showing in reasonable detail the facts
upon which such adjustment is based; and
(iii) AT&T Wireless shall notify the Holders of record of
the Warrants, at their last addresses as they shall appear in the
Warrant Transfer Books, within five Business Days after consummation
of the transaction triggering such adjustment, setting forth the
adjusted Exercise Price and the adjusted Warrant Number and showing in
each case in reasonable detail the facts upon which such adjustment is
based.
(k) With respect to any adjustments pursuant to this Section 4.1 that
take effect following the date fixed for the determination of stockholders
entitled to receive a dividend, distribution or other issuance, in the event
such dividend, distribution or other issuance is abandoned without consummation,
such adjustments shall be rescinded and the Exercise Price and the Warrant
Number will be readjusted to the Exercise Price and Warrant Number that would
have been in effect had such adjustments never been made. In the event a Holder
exercises any Warrants following the effectiveness of any such adjustments but
prior to consummation of the dividend, distribution or issuance giving rise to
such adjustments, AT&T Wireless may withhold delivery to the Holder of a portion
of the Underlying Stock (or other property) issuable on such exercise equal to
the portion that would not have been issuable but
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<PAGE>
for such adjustments, but shall deliver such withheld Underlying Stock (or other
property) promptly upon consummation of such dividend, distribution or issuance.
(l) If any action would require adjustment of the Exercise Price or
the property for which Warrants are exercisable pursuant to more than one of the
provisions described in this Section 4 in a manner such that such adjustments
are duplicative, only one adjustment shall be made.
4.2. Exercise Price Adjustments for Stapled Securities. (a) Prior to a
Separation Event with respect to any Stapled Securities, such Stapled Securities
will be deemed, for purposes of the adjustments contemplated hereby, to comprise
part of the shares of Underlying Stock to which such Stapled Securities
appertain, and, as a result, no separate adjustment will be made with respect to
any distribution or issuance of such Stapled Securities.
(b) If a Separation Event occurs with respect to any Stapled
Securities, each Holder of Warrants shall thereafter be entitled to receive upon
exercise of such Holder's Warrants, in addition to the shares of Underlying
Stock issuable upon such exercise, the same rights to which such Holder would
have been entitled under the Stapled Securities that would have appertained to
such shares of Underlying Stock if such Holder had acquired such shares of
Underlying Stock immediately before such Separation Event.
4.3. Adjustment for Fundamental Change. In the event that the Issuer
shall be a party to any Fundamental Change, then lawful provisions shall be made
as part of the terms of such Fundamental Change whereby each Holder of Warrants
then outstanding shall have the right thereafter (subject to the availability of
legally available funds to the extent required by applicable law) to exercise
such Warrants only for the kind and amount of securities, cash and other
property receivable upon such Fundamental Change by a holder of the number of
shares of Underlying Stock for which such Warrants could have been exercised
immediately prior to such Fundamental Change. In such event, the Exercise Price
in effect immediately prior to such Fundamental Change shall become the Exercise
Price immediately after such Fundamental Change with respect to the kind and
amount of securities, cash and other property receivable upon such Fundamental
Change by a holder of one share of Underlying Stock. The Issuer, or the person
formed by the applicable consolidation or resulting from the applicable merger
or that acquires the applicable assets or AT&T Wireless's shares, as the case
may be, pursuant to such Fundamental Change shall make lawful provisions to
establish such right and to provide for adjustments that, for events subsequent
to consummation of such Fundamental Change, shall be as nearly equivalent as may
be practicable to the adjustments provided for herein, and the Issuer agrees
that it will not be a party to or permit such Fundamental Change to occur unless
such provisions are so made as a part of the terms thereof. The substance of
this paragraph shall similarly apply to successive Fundamental Changes.
4.4. Statements on Warrant Certificates. Irrespective of any
adjustment in the Exercise Price or Warrant Number, Warrant Certificates
theretofore or thereafter issued may continue to express the same price and
number and kind of shares as are stated in the Warrant Certificates initially
issued pursuant to this Agreement (or issued pursuant to Section 2.2(b)), it
being understood that the Exercise Price and Warrant Number recorded in the
records
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of AT&T Wireless pursuant to Section 4.1(j) hereof shall at all times govern and
be binding upon any Holder of a Warrant Certificate; provided that, upon the
request of any Holder, AT&T Wireless shall issue, upon presentation and
surrender by the Holder of the Warrant Certificate representing Warrants at the
Corporate Office (or such other office or agency of AT&T Wireless in the United
States as it may designate by notice in writing to each Holder at the address of
such Holder appearing in the Warrant Transfer Books), a new Warrant Certificate
reflecting the as-then-adjusted Exercise Price and the as-then-adjusted Warrant
Number.
4.5. No Fractional Shares. When the Underlying Stock is Current
Wireless Tracking Stock or AT&T Wireless Common Stock, no fractional shares of
Underlying Stock will be issued as a result of an exercise of Warrants by a
Holder, but in lieu thereof, AT&T Wireless shall pay to the Holder a cash
adjustment in an amount equal to the same fraction of the Current Market Price
of such fractional interest on the exercise date. Fractional shares will be
issued as a result of an exercise of Warrants when New Tracking Stock is the
Underlying Stock, and there shall be no cash adjustment unless otherwise agreed
between the Issuer and the Holder.
4.6. Dividend or Interest Reinvestment Plans. Notwithstanding anything
to the contrary in this Section 4, the issuance of any shares of Underlying
Stock pursuant to any a Dividend Reinvestment Plan or other plan providing for
the reinvestment of dividends or interest payable on securities of AT&T or AT&T
Wireless and the investment of additional optional amounts in shares of
Underlying Stock under any such plan, and the issuance of any shares of
Underlying Stock or options or rights to purchase such shares pursuant to any
stock option, stock purchase or similar plan or arrangement for the benefit of
employees, consultants or directors of AT&T or AT&T Wireless or its
subsidiaries, or pursuant to any option, warrant, right or exercisable,
exchangeable or convertible security outstanding as of the date the Warrants
were first issued, shall not be deemed to constitute an issuance of Underlying
Stock or exercisable, exchangeable or convertible securities by AT&T or AT&T
Wireless to which any of the adjustment provisions described above applies.
There shall also be no adjustment of the Exercise Price in case of the issuance
of any stock (or securities convertible into or exchangeable for stock) of AT&T
or AT&T Wireless except as specifically described in this Section 4.
4.7. Determinations by the Board of Directors. The determination of
the Board of Directors in good faith (expressed in a Board Resolution) as to the
proper application of the provisions of Sections 4.1 through 4.6 shall be
conclusive and binding on all parties for all purposes.
4.8. Adjustments in Connection with the Spin-Off. Anything in this
Section 4 or this Agreement notwithstanding, no adjustment to the Warrant Number
or Exercise Price shall be made as a result of the Exchange Offer, or as a
result of the Spin-off and the transactions contemplated thereby (including,
without limitation (a) the conversion of all or any shares of New Tracking Stock
into shares of Current AT&T Wireless Tracking Stock, (b) the conversion or
redemption of Current Wireless Tracking Stock into or in exchange for AT&T
Wireless Common Stock, (c) the conversion of AT&T's Retained Wireless Interest
into any tracking or direct equity interest in AT&T Wireless, and (d) the
distribution of shares of AT&T
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Wireless Common Stock to holders of common stock of AT&T) other than the
operation of Section 3.2(c) hereof in accordance with its terms.
5. WARRANT TRANSFER.
5.1. Transferability of Warrants. (a) Without the prior written
consent of AT&T (prior to the Spin-off) or AT&T Wireless (following the
Spin-off), the Warrants shall not be Transferable for a period of 18 months
following the Issue Date (except as otherwise provided below), except for
Transfers by DoCoMo to any directly or indirectly wholly owned Subsidiary of
DoCoMo (each such transferee, a "Designee"); provided that prior to such
Transfer such Designee agree in writing with AT&T Wireless to itself be bound by
all the provisions of this Agreement as if such transferee were DoCoMo. Nothing
in this Section 5.1(a) shall limit DoCoMo's right to make Transfers in
accordance with and to the extent provided in Sections 4.3 and 4.4 of the
Investor Agreement. In the event that during the initial 18-month period any
Designee ceases to be such a directly or indirectly wholly owned Subsidiary,
then any prior Transfer to such Subsidiary shall immediately become null and
void and ownership and titled to any securities previously Transferred to such
Subsidiary shall revert to DoCoMo.
(b) The foregoing notwithstanding, DoCoMo may Transfer Warrants
without AT&T or AT&T Wireless's prior written consent prior to the expiration of
18 months following the Issue Date, subject to the other provisions of this
Section 5.1, upon the occurrence of either of the following events: (i) a sale
of all or substantially all the assets of the Wireless Group, or a merger,
consolidation or similar business combination involving all or substantially all
of the business of the Wireless Group, other than any such transaction in which
the holders of the Economic Interests in the Wireless Group as of immediately
prior to the consummation of such transaction continue to hold, directly or
indirectly, at least two-thirds of such Economic Interests in the Wireless Group
or the successor corporation to the Wireless Group following such transaction,
or (ii) the acquisition or acquisitions (including by merger or other similar
transaction) of any business or assets by the Wireless Group (other than
acquisitions of spectrum) after the Issue Date if the consideration paid by or
on behalf of AT&T Wireless with respect to all such acquisitions exceeds $25
billion.
(c) DoCoMo's rights under this Agreement (and, subject to its right to
Transfer one demand registration right pursuant to Section 6.1(c) of the
Investor Agreement, the Related Agreements) will not be transferable to any
transferee of any Warrants, other than a transferee that is and remains a wholly
owned Subsidiary of DoCoMo (and has entered into an agreement with AT&T Wireless
as set forth in Section 5.1(a)).
(d) Any provision hereof to the contrary notwithstanding, any
attempted or purported Transfer that would result in the number of Holders of
Warrants being greater than three (treating DoCoMo and its Designees as one
Holder for the purposes of this Section 5.1(d)) shall be null and void, and AT&T
Wireless shall have no obligation to register any such Transfer on the Warrant
Transfer Books, to issue any Warrant Certificate in respect thereof or otherwise
to recognize or acknowledge any such Transfer.
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(e) Any Warrant Certificate issued on the Issue Date or issued
thereafter in respect of any Transfer shall bear a legend or legends referencing
restrictions on Transfer of such shares under the Securities Act and under this
Agreement.
(f) The Transfer of any equity securities of any Designee to any
Person other than DoCoMo or another wholly-owned Subsidiary of DoCoMo shall be
deemed to be a Transfer of any Warrants held by any such Designee and shall be
subject to all of the provisions related to Transfer of this Section 5 and of
this Agreement generally.
5.2. Warrant Transfer Books. (a) AT&T Wireless shall keep at the
Corporate Office a register or registers (the "Warrant Transfer Books") in
which, subject to such reasonable regulations as it may prescribe, AT&T Wireless
shall provide for the registration of the Warrants and of Transfers or exchanges
of Warrants, subject to Section 2.3. AT&T Wireless may rely conclusively on the
Warrant Transfer Books to determine ownership of Warrants and entitlements
relating thereto.
(b) At the option of the Holder in connection with any Transfer
permitted under this Section 5, Warrants may be exchanged at the Corporate
Office. Whenever any Warrant Certificates are so surrendered for exchange, AT&T
Wireless shall execute the Warrant Certificates that the Holder making the
exchange is entitled to receive.
(c) All Warrant Certificates issued upon any registration of Transfer
or exchange of Warrants shall be the valid obligations of AT&T Wireless,
evidencing the same obligations, and entitled to the same benefits under this
Agreement, as the Warrant Certificates surrendered upon such registration of
Transfer or exchange.
(d) Every Warrant Certificate presented or surrendered for
registration of Transfer or for exchange shall (if so required by AT&T Wireless)
be duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to AT&T Wireless duly executed, by the Holder thereof or his
attorney duly authorized in writing.
(e) No service charge shall be made for any registration of Transfer
or exchange of Warrants, but AT&T Wireless may require payment of a sum
sufficient to cover any tax or other governmental charge that may be imposed in
connection with any registration of Transfer or exchange of Warrants.
(f) Only the registered Holder of a Warrant Certificate shall be
treated by AT&T Wireless and all other Persons dealing therewith as the owner of
such Warrant Certificate for any purpose and as the Person entitled to exercise
the rights represented thereby, or to the Transfer thereof, when such holder
shall be reflected as the Holder thereof on the Warrant Transfer Books, any
notice to the contrary notwithstanding; and until such Transfer on such Warrant
Transfer Books, AT&T Wireless may treat the registered Holder of such Warrant
Certificate as the owner for all purposes.
6. REPURCHASE AND REDEMPTION.
6.1. Redemption. (a) In the event AT&T redeems outstanding shares of
New Tracking Stock in accordance with either of Section 5(a) or 5(b) of the
Certificate of
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Amendment (either, a "Permitted Redemption"), AT&T Wireless shall redeem all
(but not less than all) of the Warrants held by DoCoMo (and any Designee)
substantially concurrently with such redemption of New Tracking Stock. In such
event, the per Warrant redemption price payable by AT&T Wireless upon such
redemption shall be equal to the sum of (i) $3,162.602 per share of New Tracking
Stock for which such Warrant is exercisable, or $6.3252 per share of Current
Wireless Tracking Stock for which such Warrant was exercisable immediately
following the conversion by DoCoMo or any of its Designees of any shares of New
Tracking Stock into shares of Current Wireless Tracking Stock (in each case,
adjusted to reflect any stock split, reverse stock split, stock dividend or
similar recapitalization of such shares) and (ii) interest on the amount set
forth in clause (i) at a rate equal to the applicable Cost of Carry plus 3% per
annum from the Issue Date of the Warrants to but not including the Redemption
Date.
(b) At such time or times as AT&T Wireless exercises its right to
cause a Permitted Redemption, AT&T Wireless shall give notice of such redemption
to DoCoMo by mailing by first-class mail a notice of such redemption, not less
than 30 nor more than 60 days prior to the date fixed for such redemption (the
"Redemption Date"), as provided in Section 9.4 hereof. Each such redemption
notice shall specify the Redemption Date and the per share Warrant price
applicable to such redemption, and shall state that the redemption price shall
be paid upon surrender of a Warrant Certificate or Warrant Certificates
representing such Warrants.
(c) Before DoCoMo or any Designee shall be entitled to receive the
redemption price with respect to its Warrants, DoCoMo and any Designee must
surrender, at such office as AT&T Wireless shall specify, the Warrant
Certificate or Warrant Certificates for such Warrants duly endorsed to AT&T
Wireless or in blank or accompanied by proper instruments of transfer to AT&T
Wireless or in blank, unless AT&T Wireless shall waive such requirements. AT&T
Wireless shall, as soon as practicable after such surrender of Warrant
Certificates, pay to DoCoMo the redemption price specified by Section 6.1(a).
(d) From and after any Redemption Date, all rights of DoCoMo (and any
Designee) as a holder of Warrants shall cease except for the right, upon
surrender of the Warrant Certificate or Warrant Certificates representing such
Warrants, to receive the redemption price with respect thereto.
6.2. Repurchase. Solely when held by DoCoMo (or any Designee), the
Warrants shall be subject to the Technology Default Right and the No-Spin-off
Right, in each case in accordance with and as provided for in Sections 4.3 and
4.4, respectively, of the Investor Agreement.
7. NO VOTING RIGHTS.
7.1. No Voting Rights. Warrants shall have no voting rights with
respect to AT&T or AT&T Wireless, and a Holder of a Warrant, as such, shall not
be entitled to any rights of a stockholder of AT&T or AT&T Wireless, including,
without limitation, the right to vote, to consent, to exercise any preemptive
right, to receive any notice of meetings of stockholders for the election of
directors of AT&T Wireless or any other matter or to receive any notice of any
proceedings of AT&T Wireless.
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<PAGE>
8. COVENANTS.
8.1. Reservation of Underlying Stock for Issuance on Exercise of
Warrants. (a) From the Issue Date until the earlier of the consummation of the
Spin-off, the Expiration Date and the first date on which all of the Warrants
have been exercised, repurchased or redeemed, AT&T hereby agrees: (i) that there
shall be reserved for issuance and delivery upon exercise of the Warrants the
number of shares of authorized but unissued shares of Underlying Stock, or other
stock or securities deliverable pursuant to Section 4, as shall be required for
issuance or delivery upon exercise of the Warrants and (ii) to make available to
AT&T Wireless from time to time or upon request of AT&T Wireless in connection
with any exercise of Warrants by any holder such number of Underlying Stock, or
other stock or securities deliverable pursuant to Section 4, as shall be
required for issuance or delivery upon exercise of the Warrants. Without
limiting the generality of the foregoing, AT&T agrees that before taking any
action which would cause an adjustment reducing the Exercise Price below the
then par value of Underlying Stock issuable upon exercise of the Warrants, AT&T
will from time to time take all such action which may be necessary in order that
AT&T may validly and legally issue fully paid and nonassessable shares of
Underlying Stock at the Exercise Price as so adjusted.
(b) From the consummation of the Spin-off until the earlier of the
Expiration Date and the first date on which all of the Warrants have been
exercised, repurchased or redeemed, AT&T Wireless hereby agrees that there shall
be reserved for issuance and delivery upon exercise of the Warrants, free from
preemptive rights, the number of shares of authorized but unissued shares of
Underlying Stock, or other stock or securities deliverable pursuant to Section
4, as shall be required for issuance or delivery upon exercise of the Warrants.
Without limiting the generality of the foregoing, AT&T Wireless agrees that
before taking any action that would cause an adjustment reducing the Exercise
Price below the then par value of Underlying Stock issuable upon exercise of the
Warrants, AT&T Wireless will from time to time take all such action that may be
necessary in order that AT&T Wireless may validly and legally issue fully paid
and nonassessable shares of Underlying Stock at the Exercise Price as so
adjusted.
9. MISCELLANEOUS.
9.1. Payment of Taxes. AT&T Wireless shall pay any and all stock
transfer, documentary stamp and other taxes that may be payable in respect of
the issuance or delivery of the Warrants or in respect of the issuance or
delivery by AT&T Wireless of any securities upon exercise of the Warrants with
respect thereto. AT&T Wireless shall not, however, be required to pay any such
tax that may be payable in respect of any transfer involved in the issuance or
delivery of Warrants or Underlying Stock or other securities in a name other
than that in which Warrants with respect to which such shares of Underlying
Stock or other securities are issued or delivered were registered, and shall not
be required to make any such issuance or delivery unless and until the person
otherwise entitled to such issuance or delivery has paid to AT&T Wireless the
amount of any such tax or has established, to the satisfaction of AT&T Wireless,
that such tax has been paid or is not payable.
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<PAGE>
9.2. Surrender of Certificates. Any Warrant Certificate surrendered
for exercise or purchase shall be promptly cancelled by AT&T Wireless and shall
not be reissued. AT&T Wireless shall destroy such cancelled Warrant
Certificates. AT&T Wireless promptly shall provide to AT&T a copy of each
Warrant Certificate so cancelled and destroyed, and shall indemnify and hold
AT&T harmless for any loss or liability (including any dilution or reduction in
AT&T's Retained Wireless Interest) arising from any failure to cancel any
Warrant that shall have been exercised, including from any Warrant being
exercised more than once.
9.3. Mutilated, Destroyed, Lost and Stolen Warrant Certificates. (a)
If (i) any mutilated Warrant Certificate is surrendered to AT&T Wireless or (ii)
AT&T Wireless receives evidence to its satisfaction of the destruction, loss or
theft of any Warrant Certificate, and there is delivered to AT&T Wireless (or,
prior to consummation of the Spin-off, AT&T Wireless and AT&T) such security or
indemnity as may be required by them to save it (or each of them) harmless,
then, in the absence of notice to AT&T Wireless that such Warrant Certificate
has been acquired by a bona fide purchaser, AT&T Wireless shall execute and
deliver, in exchange for any such mutilated Warrant Certificate or in lieu of
any such destroyed, lost or stolen Warrant Certificate, a new Warrant
Certificate of like tenor and for a like aggregate number of Warrants.
(b) Upon the issuance of any new Warrant Certificate under this
Section 9.3, AT&T Wireless may require the payment of a sum sufficient to cover
any tax or other governmental charge that may be imposed in relation thereto and
other expenses (including the reasonable fees and expenses of counsel to AT&T
Wireless) in connection therewith.
(c) Every new Warrant Certificate executed and delivered pursuant to
this Section 9.3 in lieu of any destroyed, lost or stolen Warrant Certificate
shall constitute an original contractual obligation of AT&T Wireless, whether or
not the destroyed, lost or stolen Warrant Certificate shall be at any time
enforceable by anyone, and shall be entitled to the benefits of this Agreement
equally and proportionately with any and all other Warrant Certificates duly
executed and delivered hereunder.
(d) The provisions of this Section 9.3 are exclusive and shall
preclude (to the extent lawful) all other rights or remedies with respect to the
replacement of mutilated, destroyed, lost, or stolen Warrant Certificates.
9.4. Notices. Any notice required to be given by AT&T Wireless to any
Holder pursuant to this Agreement shall be made by mailing by registered mail,
return receipt requested, to the Holders at their respective addresses shown on
the Warrant Transfer Books maintained by AT&T Wireless.
9.5. Amendments; Waiver. This Agreement may be amended only by an
agreement in writing executed by DoCoMo (on behalf of itself and all of its
Designees), AT&T and AT&T Wireless; provided that, after the Spin-off, this
Agreement may be amended by an agreement in writing executed by AT&T Wireless
and DoCoMo (on behalf of itself and all of its Designees) to the extent (but
only to the extent) such amendment does not affect any rights or obligations of
AT&T. Any party may waive in whole or in part any benefit or right provided
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<PAGE>
to it under this Agreement, such waiver being effective only if contained in a
writing executed by the waiving party. No failure by any party to insist upon
the strict performance of any covenant, duty, agreement or condition of this
Agreement or to exercise any right or remedy consequent upon breach thereof
shall constitute a waiver of any such breach or of any other covenant, duty,
agreement or condition, nor shall any delay or omission of any party to exercise
any right hereunder in any manner impair the exercise of any such right accruing
to it thereafter.
9.6. Successors and Assigns. Except as and to the extent set forth in
Section 5, neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto, in whole
or in part (whether by operation of law or otherwise), without the prior written
consent of each of the other parties. Subject to the preceding sentence, this
Agreement will be binding upon, inure to the benefit of and be enforceable by
the parties and their respective successors and assigns. Any attempted
assignment in violation of this Section 9.6 shall be void.
9.7. Governing Law. This Agreement 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
giving effect to the conflicts of laws principles thereof that would govern,
construe or enforce the Agreement under laws other than the State of New York.
9.8. Arbitration. The parties encourage the prompt and equitable
settlement of all controversies or claims between or among the parties arising
out of or relating to this Agreement, the Purchase Agreement and the Investor
Agreement including any claim based on or arising from an alleged tort, and
agree as follows:
(i) Any controversy or claim arising out of or relating to the
above-referenced Agreements ("Arbitration Claims"), including Arbitration Claims
arising under Article VI, shall be determined by arbitration in accordance with
the International Arbitration Rules of the American Arbitration Association or
any successor organization thereof and Title 9 of the U.S. Arbitration Act in
New York, New York.
(ii) Within fifteen (15) days after the delivery in accordance with
Section 9.4 hereof by any party to the other (treating AT&T and AT&T Wireless as
one party and treating DoCoMo and all Designees as one party) of written notice
of the commencement of arbitration, each party shall select one person to act as
an arbitrator; and the two selected shall select a third arbitrator within
fifteen (15) days of the second arbitrator's appointment. If the arbitrators
selected by the parties are unable or fail to agree upon the third arbitrator,
the third arbitrator shall be selected by the American Arbitration Association
pursuant to its rules. Arbitration proceedings shall be conducted in the English
language.
(iii) The parties shall agree upon what, if any, discovery shall be
permitted. If the parties do not agree on the extent and form of discovery
within ten (10) days after the appointment of the third arbitrator, then there
shall be neither discovery nor the issuance of subpoenas except as otherwise
expressly directed in accordance with the unanimous determination of the
arbitrators.
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<PAGE>
(iv) The powers of the arbitrators to fashion remedies hereunder shall
be no broader than the powers to award legal and equitable remedies available to
a court, unless the parties expressly state elsewhere in the relevant
above-referenced Agreements that the arbitrators may order broader or narrower
legal and equitable remedies. The arbitrators shall not have the power to award
any punitive damages, and each party expressly waives any claim thereto. This
Section 9.8 shall govern if any conflict arises between this Section and any
other remedy terms in the above-referenced Agreements.
(v) The arbitrators shall make their award within thirty (30) days
after the conclusion of arbitration hearings. Subject to paragraph (vi) of this
Section 9.8, the award shall be final and binding, and judgment therein may be
entered by any court having jurisdiction thereof.
(vi) Within thirty (30) days after receipt of any award (which shall
not be binding if an appeal is taken hereunder), any party (treating AT&T and
AT&T Wireless as one party and treating DoCoMo and all Designees as one party)
may notify the American Arbitration Association of its intent to appeal to a
second three-arbitrator tribunal, selected in the same fashion as the initial
tribunal (with the 15-day arbitrator selection period commencing on the first
Business Day after such notification is received by the other party). At least
two of the three appellate arbitrators shall be former judges of state or
federal courts. The appeal tribunal shall be entitled to adopt the initial award
as its own, modify the initial award or substitute its own award for the initial
award. The appeal tribunal shall not modify or replace the initial award except
for errors of law or because of clear and convincing factual errors. If an
appeal is taken, the award of the appeal tribunal shall be final and binding,
and judgment may be entered therein by any court having jurisdiction thereof.
The review by the appeal tribunal will be completed and its order issued within
thirty (30) days of the final submission of the parties to the panel.
(vii) The parties (treating AT&T and AT&T Wireless as one party and
treating DoCoMo and all Designees as one party) shall equally bear the costs and
fees of the arbitration, including court reporter expenses, and each party shall
bear its own legal expenses.
(viii) The parties waive recourse to any court, including all courts
in the United States and Japan, except for enforcement of this Section 9.8 for
enforcement of any arbitral award hereunder.
(ix) The duty of the parties to arbitrate any Arbitration Claim within
the scope of this Section 9.8 shall survive the expiration or termination of
this Agreement for any reason.
9.9. Entire Agreement. This Agreement, the Related Agreements and the
schedules and exhibits attached to any such documents constitute the entire
agreement among DoCoMo, each Designee, AT&T and AT&T Wireless with respect to
the subject matter hereof. This Agreement and the Related Agreements supersede
all prior agreements with respect to the subject matter hereof, and supersede
the Letter Agreement in its entirety.
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<PAGE>
9.10. Severability. If any term or provision of this Agreement or any
application thereof shall be declared or held invalid, illegal or unenforceable,
in whole or in part, whether generally or in any particular jurisdiction, such
provision shall be deemed amended to the extent, but only to the extent,
necessary to cure such invalidity, illegality or unenforceability, and the
validity, legality and enforceability of the remaining provisions, both
generally and in every other jurisdiction, shall not in any way be affected or
impaired thereby.
9.11. Submission to Jurisdiction; Waivers. Subject to the provisions
of Section 9.8, each of the parties hereto (including each Designee) irrevocably
agrees that any legal action or proceeding with respect to this Agreement or for
recognition and enforcement of any judgment in respect hereof, other than with
respect to any dispute subject to arbitration under Section 9.8 (but including
for enforcement of the arbitration provisions contained in Section 9.8 or any
award resulting therefrom), brought by any other party hereto or its successors
or assigns shall be brought and determined only in the United States District
Court for the Southern District of New York, or in the event (but only in the
event) that such court does not have subject matter jurisdiction over such
action or proceeding, only in the courts of the State of New York. Each of the
parties hereto hereby irrevocably submits with regard to any such action or
proceeding for itself and in respect of its property, generally and
unconditionally, to the personal jurisdiction of the aforesaid courts. Each of
the parties hereto hereby irrevocably waives, and agrees not to assert, by way
of motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement or the transactions contemplated hereby, (a) any
claim that it is not personally subject to the jurisdiction of the above-named
courts for any reason other than the failure to serve in accordance with Section
9.4, (b) that it or its property is exempt or immune from jurisdiction of any
such court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and (c) to the fullest extent
permitted by the applicable law, that (i) the suit, action or proceeding in such
court is brought in an inconvenient forum, (ii) the venue of such suit, action
or proceeding is improper and (iii) this Agreement, or the subject matter
hereof, may not be enforced in or by such courts.
9.12. Waiver of Immunity. DoCoMo and each Holder agrees that, to the
extent that it or any of its Subsidiaries or any of its property or the property
of its Subsidiaries is or becomes entitled to any immunity on the grounds of
sovereignty or otherwise based upon its status as an agency or instrumentality
of a government from any legal action, suit or proceeding or from set-off or
counterclaim relating to this Agreement from the jurisdiction of any competent
court or arbitrator, from service of process, from attachment prior to judgment,
from attachment in aid of execution, from execution pursuant to a judgment or an
arbitral award or from any other legal or arbitral process in any jurisdiction,
it, for itself and its property, and for each of its Subsidiaries and its
property, expressly, irrevocably and unconditionally waives, and agrees not to
plead or claim, any such immunity with respect to matters arising with respect
to this Agreement or the subject matter hereof (including any obligation for the
payment of money). DoCoMo and each other Holder of the type referred to in the
first sentence of this paragraph agrees that the foregoing waiver is irrevocable
and is not subject to withdrawal in any jurisdiction or under any statute,
including the Foreign Sovereign Immunities Act, 28 U.S.C. Section 1602 et seq.
The foregoing waiver shall constitute a present
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<PAGE>
waiver of immunity at any time any action is initiated against DoCoMo with
respect to this Agreement or the subject matter hereof (including any obligation
for the payment of money).
9.13. Counterparts. This Agreement 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.
9.14. Interpretation. When a reference is made in this Agreement to an
Article, Section, Exhibit or Schedule, such reference is to an Article or
Section of, or an Exhibit or Schedule to, this Agreement unless otherwise
indicated. The table of contents and headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. Whenever the words "include," "includes" and
"including" are used in this Agreement, they are deemed to be followed by the
words "without limitation." For all purposes of this Agreement, except as
otherwise expressly provided or unless the context otherwise requires, (a) the
terms defined include the plural as well as the singular, (b) all accounting
terms not otherwise defined herein have the meanings assigned under generally
accepted accounting principles in the United States, and (c) the words "herein,"
"hereof" and "hereunder" and other words of similar import refer to this
Agreement as a whole and not to any particular Article, Section or other
subdivision.
9.15. Termination as to AT&T. Effective immediately upon consummation
of the Spin-off, (i) AT&T shall be released and terminated as a party hereto,
and except with respect to liabilities arising from any breach of this Agreement
prior to the consummation of the Spin-off, shall have no further liability or
obligation hereunder to any party hereto or any other Person hereby, and this
Agreement shall no longer represent an agreement of AT&T enforceable against
AT&T by any other Person and (ii) except with respect to liabilities arising
from any breach of this Agreement prior to the consummation of the Spin-off,
DoCoMo shall be released and have no further liability or obligation hereunder
to AT&T, and this Agreement shall no longer represent an agreement enforceable
by AT&T against DoCoMo or successor thereof.
9.16. Substitution for AT&T Wireless. In the event the Spin-off is to
be effected by spinning off an entity other than AT&T Wireless, AT&T shall cause
the corporation that is the subject of the Spin-off (and that is to be the
issuer of publicly traded common stock representing the former Wireless Group)
to execute this Agreement. Upon such execution, such corporation shall be
substituted for AT&T Wireless for all purposes of this Agreement and the
Warrants, and all references herein and therein to AT&T Wireless Common Stock
shall be deemed to refer to the publicly traded common stock of such corporation
outstanding as of and following the Spin-off.
9.17. Waiver of Jury Trial. Each party hereto hereby waives any right
it may have to a trial by jury in respect of any action, proceeding or
litigation directly or indirectly arising out of, under or in connection with
this Agreement or the transactions contemplated hereby.
9.18. Effectiveness of this Agreement. The parties agree that this
Agreement shall become effective on the Issue Date immediately upon issuance of
the Warrants, and that
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<PAGE>
prior thereto, neither this Agreement nor any provision of hereof shall be
effective or binding upon any of the parties hereto (other than this Section
9.18), and each party agrees not to seek to enforce any provision of this
Agreement (other than this Section 9.18) prior to, or with respect to the period
prior to, the issuance on the Issue Date. In the event the Purchase Agreement is
terminated without the Closing having occurred, this Agreement shall be
terminated and shall be null and void, without any liability of any party, and
shall be deemed by all parties as if it had not been executed by any of the
parties.
9.19. No Third Party Beneficiaries. Other than to the extent each
Warrant and Warrant Certificate held by a Holder is subject to the rights,
remedies, obligations or liabilities under or by reason of this Agreement
contained in this Agreement, nothing in this Agreement, expressed or implied, is
intended to confer upon any person, other than the parties hereto or their
respective successors (including, without limitation, each Designee and any
successor to AT&T Wireless pursuant to Section 9.16), any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
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<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed, as of the day and year first above written.
AT&T WIRELESS SERVICES, INC.
By: /s/ John D. Zeglis
----------------------------------
Name: John D. Zeglis
Title: Chief Executive Officer
NTT DOCOMO, INC.
By: /s/ Keiji Tachikawa
----------------------------------
Name: Keiji Tachikawa
Title: President and Chief Executive Officer
AT&T CORP.
By: /s/ C. Michael Armstrong
----------------------------------
Name: C. Michael Armstrong
Title: Chairman & Chief Executive Officer
[Signature Page to Warrant Agreement]
<PAGE>
IN WITNESS WHEREOF, each Designee referred to on this page has caused
this Agreement to be duly executed by its authorized officer as of the date
indicated beneath its signature.
Name of Designee #1:____________________
By:________________________________________
Name:
Title:
Date:
Name of Designee #2:____________________
By:________________________________________
Name:
Title:
Date:
[Designee Signature Page to Warrant Agreement]
<PAGE>
EXHIBIT A
---------
FORM OF FACE OF WARRANT CERTIFICATE
THE WARRANTS EVIDENCED HEREBY AND ANY SHARES OF WIRELESS GROUP PREFERRED
TRACKING STOCK OR OTHER SECURITIES ISSUED ON EXERCISE HEREOF HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT")
AND MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1)
PURSUANT TO AN AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT OR (2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER JURISDICTIONS. PURSUANT TO SECTION 2.3 OF
THE WARRANT AGREEMENT UNDER WHICH THESE WARRANTS WERE ISSUED, AT&T WIRELESS
SERVICES, INC. ("AT&T WIRELESS") MAY REQUIRE, IN CONNECTION WITH AND AS A
CONDITION TO ANY PROPOSED REGISTRATION OF TRANSFER OF ANY WARRANT CERTIFICATE,
AN OPINION OF COUNSEL STATING THAT THE PROPOSED TRANSFER OF WARRANTS IS ENTITLED
TO AN EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
SUPPORTING CERTIFICATES AS TO FACTUAL MATTERS FROM THE PROPOSED TRANSFEROR AND
TRANSFEREE, ALL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO AT&T WIRELESS.
THE WARRANTS EVIDENCED HEREBY AND ANY SHARES OF WIRELESS GROUP PREFERRED
TRACKING STOCK OR OTHER SECURITIES ISSUED ON EXERCISE HEREOF ARE SUBJECT TO
CERTAIN TRANSFER RESTRICTIONS CONTAINED IN THE WARRANT AGREEMENT, DATED AS OF
DECEMBER 20, 2000, AND THE INVESTOR AGREEMENT, DATED AS OF DECEMBER 20, 2000,
AMONG AT&T CORP., AT&T WIRELESS AND NTT DOCOMO, INC. AND ANY TRANSFER OF THE
WARRANTS EVIDENCED HEREBY OTHER THAN IN ACCORDANCE WITH THE TERMS OF THIS
WARRANT CERTIFICATE AND THOSE AGREEMENTS IS NULL AND VOID.
WARRANTS TO PURCHASE
WIRELESS GROUP PREFERRED TRACKING STOCK
OF
AT&T CORP.
No. _____________ Certificate for _________ Warrants
A-1
<PAGE>
This certifies that ___________, or its registered assigns (each, a
"Holder"), is the registered holder of the number of warrants (the "Warrants")
set forth above. Each Warrant entitles its Holder, subject to the provisions
contained herein and in the Warrant Agreement referred to below, to purchase
from AT&T Wireless Services, Inc., a Delaware corporation ("AT&T Wireless"), at
any time prior to the Expiration Date (as defined herein), one (the "Warrant
Number") fully paid and nonassessable share of preferred stock of AT&T Corp., a
New York corporation ("AT&T") of the class designated as Wireless Group
Preferred Tracking Stock, par value $1.00 per share (the "Underlying Stock"), at
an exercise price of $17,500.00 per share (the "Exercise Price"), pursuant to
each of the 83,496.546 Warrants evidenced hereby. The Warrant Number and the
Exercise Price set forth and are subject to adjustment, the security
constituting the Underlying Stock and the issuer thereof is subject to change,
and this Warrant Certificate is subject to substitution or replacement to
reflect any of the foregoing, in each case as set forth in the Warrant
Agreement.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of December 20, 2000 (as amended or supplemented
from time to time, the "Warrant Agreement"), between AT&T Wireless, NTT DoCoMo,
Inc., a corporation organized under the laws of Japan ("DoCoMo"), and, with
respect to certain provisions thereof, AT&T, and is subject to all terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance of this
Warrant Certificate.
The Warrant Agreement is hereby incorporated by reference and made a
part of this Warrant Certificate, as if set forth herein in whole. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
AT&T Wireless, AT&T and the Holders.
Capitalized terms used but not defined in this Warrant Certificate
shall have the meaning specified in the Warrant Agreement.
Subject to the terms and conditions of the Warrant Agreement, the
Warrants evidenced hereby shall be exercisable, in whole or in part, at any
time, or from time to time, between the hours of 9:00 A.M. and 5:00 P.M., New
York time, until January [__], 2006, or if such date is not a Trading Day, until
the next succeeding Trading Day (the "Expiration Date"). The Warrants evidenced
by this Warrant Certificate may not be exercised after 5:00 P.M., New York time,
on the Expiration Date.
All shares of Underlying Stock issuable upon the exercise of Warrants
shall, upon such issue, be duly and validly issued and fully paid and
non-assessable.
To exercise a Warrant, the Holder must present and surrender this
Warrant Certificate at the Corporate Office (or such other office or agency of
AT&T Wireless in the United States as it may designate by notice in writing to
each Holder at the address of such Holder appearing in the Warrant Transfer
Books), with the Purchase Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified, together with the
Purchase Price for the share(s) of Underlying Stock as to which the Warrant(s)
evidenced by this Warrant Certificate are submitted for exercise. The Purchase
A-2
<PAGE>
Price shall be paid in United States dollars by wire transfer of immediately
available funds to an account or accounts designated by AT&T Wireless from time
to time (which information may be obtained by contacting AT&T Wireless at the
Corporate Office). AT&T Wireless shall pay all transfer, stamp and other similar
taxes that may be imposed in respect of the issuance or delivery of the Warrants
or in respect of the issuance or delivery by AT&T Wireless of any securities
upon exercise of the Warrants. AT&T Wireless shall not be required, however, to
pay any tax or other charge imposed in connection with any transfer involved in
the issue of any certificate for shares of Underlying Stock or other securities
underlying the Warrants or payment of cash to any Person other than the Holder
of a Warrant Certificate surrendered upon the exercise or purchase of a Warrant,
and in case of such transfer or payment, AT&T Wireless shall not be required to
issue any stock certificate or pay any cash until such tax or other charge has
been paid or it has been established to AT&T Wireless's satisfaction that no
such tax or other charge is due.
This Warrant Certificate and the rights hereunder are subject to
Transfer restrictions set forth in the Warrant Agreement. To the extent
transferable pursuant to the Warrant Agreement, this Warrant Certificate and all
rights hereunder are transferable by the Holder hereof, in whole or in part, on
the Warrant Transfer Books of AT&T Wireless upon surrender of this Warrant
Certificate to AT&T Wireless for registration of transfer at the office
maintained for this purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to AT&T Wireless and duly executed
by, the Holder hereof or his attorney duly authorized in writing, with signature
guaranteed as specified in the attached Form of Assignment. Upon any partial
Transfer, AT&T Wireless will issue and deliver to such holder a new Warrant
Certificate or Certificates with respect to any portion not so Transferred.
No service charge shall be made to a Holder for any registration of
transfer or exchange of the Warrant Certificates, but AT&T Wireless may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Only the registered Holder of this Warrant Certificate registered in
the Warrant Transfer Books shall be treated by AT&T Wireless and all other
persons dealing therewith as the owner thereof for any purpose and as the Person
entitled to exercise the rights represented thereby, any notice to the contrary
notwithstanding; and until such Transfer on such Warrant Transfer Books, AT&T
Wireless may treat the registered Holder thereof as the owner for all purposes.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
A-3
<PAGE>
Copies of the Warrant Agreement are on file at the office of AT&T
Wireless and may be obtained by writing to AT&T Wireless at the following
address:
7277 164th Avenue, Northeast
Redmond, Washington 98501
Attn: General Counsel
Dated: _____________, 2001
AT&T WIRELESS SERVICES, INC.
By:___________________
Name:
Title:
A-4
<PAGE>
FORM OF REVERSE OF WARRANT CERTIFICATE
PURCHASE FORM
(To be executed only upon exercise of Warrant)
To: AT&T Wireless
The undersigned hereby (1) irrevocably elects to exercise _________
Warrants to purchase _________ share(s) of Underlying Stock and hereby makes
payment of the Purchase Price of $___________ (such payment being by wire
transfer in immediately available funds), all at the Exercise Price and on the
terms and conditions specified in the Warrant Certificate and the Warrant
Agreement therein referred to; (2) surrenders this Warrant Certificate and all
right, title and interest therein to AT&T Wireless; and (3) directs that the
shares of Underlying Stock deliverable upon the exercise of such Warrants be
registered in the name and delivered at the address specified below.
Date:________________________
___________________________________*
(Signature of Owner)
___________________________________
(Street Address)
____________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
____________________________________**
______________________
* The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to AT&T Wireless.
** Signature must be guaranteed by an institution which is a member of one
of the following recognized Signature Guaranty Programs: (i) The
Securities Transfer Agent Medallion Program (STAMP); (ii) The New York
Stock Exchange Medallion Program (MSP); (iii) The Stock Exchange
Medallion Program (SEMP);or (iv) in such other guarantee programs
acceptable to AT&T Wireless.
A-5
<PAGE>
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
A-6
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered Holder of the within
Warrant Certificate hereby sells, assigns, and transfers unto the Assignee(s)
named below (including the undersigned with respect to any Warrants constituting
a part of the Warrants evidenced by the within Warrant Certificate not being
assigned hereby) all of the right of the undersigned under the within Warrant
Certificate, with respect to the number of Warrants set forth below:
Social
Security or
other
Identifying
Names of Number of Number of
Assignees Address Assignee(s) Warrants
--------- ------- ------------ ---------
A-7
<PAGE>
and does hereby irrevocably constitute and appoint ____________________ the
undersigned's attorney to make such transfer on the books of ___________________
maintained for that purpose, with full power of substitution in the premises.
Date:_____________________
___________________________________*
(Signature of Owner)
___________________________________
(Street Address)
____________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
____________________________________**
______________________
* The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to AT&T Wireless.
** Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to AT&T Wireless.
A-8
<PAGE>
EXHIBIT B
FORM OF FACE OF WARRANT CERTIFICATE
THE WARRANTS EVIDENCED HEREBY AND ANY SHARES OF WIRELESS GROUP COMMON STOCK OR
OTHER SECURITIES ISSUED ON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
(2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
AND IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS. PURSUANT TO SECTION 2.3 OF THE WARRANT
AGREEMENT UNDER WHICH THESE WARRANTS WERE ISSUED, AT&T WIRELESS SERVICES, INC.
("AT&T WIRELESS") MAY REQUIRE, IN CONNECTION WITH AND AS A CONDITION TO ANY
PROPOSED REGISTRATION OF TRANSFER OF ANY WARRANT CERTIFICATE, AN OPINION OF
COUNSEL STATING THAT THE PROPOSED TRANSFER OF WARRANTS IS ENTITLED TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
SUPPORTING CERTIFICATES AS TO FACTUAL MATTERS FROM THE PROPOSED TRANSFEROR AND
TRANSFEREE, ALL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO AT&T WIRELESS.
THE WARRANTS EVIDENCED HEREBY AND ANY SHARES OF WIRELESS GROUP COMMON STOCK OR
OTHER SECURITIES ISSUED ON EXERCISE HEREOF ARE SUBJECT TO CERTAIN TRANSFER
RESTRICTIONS CONTAINED IN THE WARRANT AGREEMENT, DATED AS OF DECEMBER 20, 2000,
AND THE INVESTOR AGREEMENT, DATED AS OF DECEMBER 20, 2000, AMONG AT&T CORP.,
AT&T WIRELESS AND NTT DOCOMO, INC. AND ANY TRANSFER OF THE WARRANTS EVIDENCED
HEREBY OTHER THAN IN ACCORDANCE WITH THE TERMS OF THIS WARRANT CERTIFICATE AND
THOSE AGREEMENTS IS NULL AND VOID.
WARRANTS TO PURCHASE
WIRELESS GROUP COMMON STOCK
OF
AT&T CORP.
No. _____________ Certificate for _________ Warrants
<PAGE>
This certifies that ___________, or its registered assigns (each, a
"Holder"), is the registered holder of the number of warrants (the "Warrants")
set forth above. Each Warrant entitles its Holder, subject to the provisions
contained herein and in the Warrant Agreement referred to below, to purchase
from AT&T Wireless Services, Inc., a Delaware corporation ("AT&T Wireless"), at
any time prior to the Expiration Date (as defined herein), five hundred (the
"Warrant Number") fully paid and nonassessable shares of common stock of AT&T
Corp., a New York corporation ("AT&T") of the class designated as Wireless Group
Common Stock, par value $1.00 per share (the "Underlying Stock"), at an exercise
price of $35.00 per share (the "Exercise Price"), pursuant to each of the ______
Warrants evidenced hereby. The Warrant Number and the Exercise Price set forth
and are subject to adjustment, the security constituting the Underlying Stock
and the issuer thereof is subject to change, and this Warrant Certificate is
subject to substitution or replacement to reflect any of the foregoing, in each
case as set forth in the Warrant Agreement.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of December 20, 2000 (as amended or supplemented
from time to time, the "Warrant Agreement"), between AT&T Wireless, NTT DoCoMo,
Inc., a corporation organized under the laws of Japan ("DoCoMo"), and, with
respect to certain provisions thereof, AT&T, and is subject to all terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance of this
Warrant Certificate.
The Warrant Agreement is hereby incorporated by reference and made a
part of this Warrant Certificate, as if set forth herein in whole. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
AT&T Wireless, AT&T and the Holders.
Capitalized terms used but not defined in this Warrant Certificate
shall have the meaning specified in the Warrant Agreement.
Subject to the terms and conditions of the Warrant Agreement, the
Warrants evidenced hereby shall be exercisable, in whole or in part, at any
time, or from time to time, between the hours of 9:00 A.M. and 5:00 P.M., New
York time, until January [__], 2006, or if such date is not a Trading Day, until
the next succeeding Trading Day (the "Expiration Date"). The Warrants evidenced
by this Warrant Certificate may not be exercised after 5:00 P.M., New York time,
on the Expiration Date.
All shares of Underlying Stock issuable upon the exercise of Warrants
shall, upon such issue, be duly and validly issued and fully paid and
non-assessable.
To exercise a Warrant, the Holder must present and surrender this
Warrant Certificate at the Corporate Office (or such other office or agency of
AT&T Wireless in the United States as it may designate by notice in writing to
each Holder at the address of such Holder appearing in the Warrant Transfer
Books), with the Purchase Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified, together with the
Purchase Price for the share(s) of Underlying Stock as to which the Warrant(s)
evidenced by this Warrant Certificate are submitted for exercise. The Purchase
B-2
<PAGE>
Price shall be paid in United States dollars by wire transfer of immediately
available funds to an account or accounts designated by AT&T Wireless from time
to time (which information may be obtained by contacting AT&T Wireless at the
Corporate Office). AT&T Wireless shall pay all transfer, stamp and other similar
taxes that may be imposed in respect of the issuance or delivery of the Warrants
or in respect of the issuance or delivery by AT&T Wireless of any securities
upon exercise of the Warrants. AT&T Wireless shall not be required, however, to
pay any tax or other charge imposed in connection with any transfer involved in
the issue of any certificate for shares of Underlying Stock or other securities
underlying the Warrants or payment of cash to any Person other than the Holder
of a Warrant Certificate surrendered upon the exercise or purchase of a Warrant,
and in case of such transfer or payment, AT&T Wireless shall not be required to
issue any stock certificate or pay any cash until such tax or other charge has
been paid or it has been established to AT&T Wireless's satisfaction that no
such tax or other charge is due.
This Warrant Certificate and the rights hereunder are subject to
Transfer restrictions set forth in the Warrant Agreement. To the extent
transferable pursuant to the Warrant Agreement, this Warrant Certificate and all
rights hereunder are transferable by the Holder hereof, in whole or in part, on
the Warrant Transfer Books of AT&T Wireless upon surrender of this Warrant
Certificate to AT&T Wireless for registration of transfer at the office
maintained for this purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to AT&T Wireless and duly executed
by, the Holder hereof or his attorney duly authorized in writing, with signature
guaranteed as specified in the attached Form of Assignment. Upon any partial
Transfer, AT&T Wireless will issue and deliver to such holder a new Warrant
Certificate or Certificates with respect to any portion not so Transferred.
No service charge shall be made to a Holder for any registration of
transfer or exchange of the Warrant Certificates, but AT&T Wireless may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Only the registered Holder of this Warrant Certificate registered in
the Warrant Transfer Books shall be treated by AT&T Wireless and all other
persons dealing therewith as the owner thereof for any purpose and as the Person
entitled to exercise the rights represented thereby, any notice to the contrary
notwithstanding; and until such Transfer on such Warrant Transfer Books, AT&T
Wireless may treat the registered Holder thereof as the owner for all purposes.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
B-3
<PAGE>
Copies of the Warrant Agreement are on file at the office of AT&T
Wireless and may be obtained by writing to AT&T Wireless at the following
address:
7277 164th Avenue, Northeast
Redmond, Washington 98501
Attn: General Counsel
Dated: _____________, 2001
AT&T WIRELESS SERVICES, INC.
By:_________________
Name:
Title:
B-4
<PAGE>
FORM OF REVERSE OF WARRANT CERTIFICATE
PURCHASE FORM
(To be executed only upon exercise of Warrant)
To: AT&T Wireless
The undersigned hereby (1) irrevocably elects to exercise _________
Warrants to purchase _________ share(s) of Underlying Stock and hereby makes
payment of the Purchase Price of $___________ (such payment being by wire
transfer in immediately available funds), all at the Exercise Price and on the
terms and conditions specified in the Warrant Certificate and the Warrant
Agreement therein referred to; (2) surrenders this Warrant Certificate and all
right, title and interest therein to AT&T Wireless; and (3) directs that the
shares of Underlying Stock deliverable upon the exercise of such Warrants be
registered in the name and delivered at the address specified below.
Date:_______________________
___________________________________*
(Signature of Owner)
___________________________________
(Street Address)
____________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
____________________________________**
_______________________
* The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to AT&T Wireless.
** Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to AT&T Wireless.
B-5
<PAGE>
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
B-6
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered Holder of the within
Warrant Certificate hereby sells, assigns, and transfers unto the Assignee(s)
named below (including the undersigned with respect to any Warrants constituting
a part of the Warrants evidenced by the within Warrant Certificate not being
assigned hereby) all of the right of the undersigned under the within Warrant
Certificate, with respect to the number of Warrants set forth below:
Social
Security or
other
Identifying
Names of Number of Number of
Assignees Address Assignee(s) Warrants
--------- ------- ------------ ---------
B-7
<PAGE>
and does hereby irrevocably constitute and appoint ____________________ the
undersigned's attorney to make such transfer on the books of ___________________
maintained for that purpose, with full power of substitution in the premises.
Date:______________________
___________________________________*
(Signature of Owner)
___________________________________
(Street Address)
____________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
____________________________________**
_______________________
* The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to AT&T Wireless.
** Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to AT&T Wireless.
B-8
<PAGE>
EXHIBIT C
FORM OF FACE OF WARRANT CERTIFICATE
THE WARRANTS EVIDENCED HEREBY AND ANY SHARES OF AT&T WIRELESS COMMON STOCK OR
OTHER SECURITIES ISSUED ON EXERCISE HEREOF HAVE NOT BEEN REGISTERED UNDER THE
UNITED STATES SECURITIES ACT OF 1933 (THE "SECURITIES ACT") AND MAY NOT BE
OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (1) PURSUANT TO AN
AVAILABLE EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT OR
(2) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT,
AND IN COMPLIANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE
UNITED STATES AND OTHER JURISDICTIONS. PURSUANT TO SECTION 2.3 OF THE WARRANT
AGREEMENT UNDER WHICH THESE WARRANTS WERE ISSUED, AT&T WIRELESS SERVICES, INC.
("AT&T WIRELESS") MAY REQUIRE, IN CONNECTION WITH AND AS A CONDITION TO ANY
PROPOSED REGISTRATION OF TRANSFER OF ANY WARRANT CERTIFICATE, AN OPINION OF
COUNSEL STATING THAT THE PROPOSED TRANSFER OF WARRANTS IS ENTITLED TO AN
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND
SUPPORTING CERTIFICATES AS TO FACTUAL MATTERS FROM THE PROPOSED TRANSFEROR AND
TRANSFEREE, ALL IN FORM AND SUBSTANCE REASONABLY SATISFACTORY TO AT&T WIRELESS.
THE WARRANTS EVIDENCED HEREBY AND ANY SHARES OF AT&T WIRELESS COMMON STOCK OR
OTHER SECURITIES ISSUED ON EXERCISE HEREOF ARE SUBJECT TO CERTAIN TRANSFER
RESTRICTIONS CONTAINED IN THE WARRANT AGREEMENT, DATED AS OF DECEMBER 20, 2000,
AND THE INVESTOR AGREEMENT, DATED AS OF DECEMBER 20, 2000, AMONG AT&T CORP.,
AT&T WIRELESS AND NTT DOCOMO, INC. AND ANY TRANSFER OF THE WARRANTS EVIDENCED
HEREBY OTHER THAN IN ACCORDANCE WITH THE TERMS OF THIS WARRANT CERTIFICATE AND
THOSE AGREEMENTS IS NULL AND VOID.
WARRANTS TO PURCHASE
COMMON STOCK
OF
AT&T WIRELESS SERVICES, INC.
No. _____________ Certificate for _________ Warrants
C-1
<PAGE>
This certifies that ___________, or its registered assigns (each, a
"Holder"), is the registered holder of the number of warrants (the "Warrants")
set forth above. Each Warrant entitles its Holder, subject to the provisions
contained herein and in the Warrant Agreement referred to below, to purchase
from AT&T Wireless Services, Inc., a Delaware corporation ("AT&T Wireless"), at
any time prior to the Expiration Date (as defined herein), [insert number
calculated in accordance with Section 3.2(c) of the Warrant Agreement] (the
"Warrant Number") fully paid and nonassessable shares of common stock of AT&T
Wireless of the class designated as Common Stock, par value $0.01 per share (the
"Underlying Stock"), at an exercise price of the result of (x) Pre-Spin Exercise
Price divided by (y) the Spin-off Exchange Ratio per share (the "Exercise
Price"), pursuant to each of the ______ Warrants evidenced hereby. The Warrant
Number and the Exercise Price set forth and are subject to adjustment, the
security constituting the Underlying Stock and the issuer thereof is subject to
change, and this Warrant Certificate is subject to substitution or replacement
to reflect any of the foregoing, in each case as set forth in the Warrant
Agreement.
This Warrant Certificate is issued under and in accordance with the
Warrant Agreement, dated as of December 20, 2000 (as amended or supplemented
from time to time, the "Warrant Agreement"), between AT&T Wireless, NTT DoCoMo,
Inc., a corporation organized under the laws of Japan ("DoCoMo"), and, with
respect to certain provisions thereof, AT&T, and is subject to all terms and
provisions contained in the Warrant Agreement, to all of which terms and
provisions the Holder of this Warrant Certificate consents by acceptance of this
Warrant Certificate.
The Warrant Agreement is hereby incorporated by reference and made a
part of this Warrant Certificate, as if set forth herein in whole. Reference is
hereby made to the Warrant Agreement for a full statement of the respective
rights, limitations of rights, duties, obligations and immunities thereunder of
AT&T Wireless, AT&T and the Holders.
Capitalized terms used but not defined in this Warrant Certificate
shall have the meaning specified in the Warrant Agreement.
Subject to the terms and conditions of the Warrant Agreement, the
Warrants evidenced hereby shall be exercisable, in whole or in part, at any
time, or from time to time, between the hours of 9:00 A.M. and 5:00 P.M., New
York time, until January [__], 2006, or if such date is not a Trading Day, until
the next succeeding Trading Day (the "Expiration Date"). The Warrants evidenced
by this Warrant Certificate may not be exercised after 5:00 P.M., New York time,
on the Expiration Date.
All shares of Underlying Stock issuable upon the exercise of Warrants
shall, upon such issue, be duly and validly issued and fully paid and
non-assessable.
To exercise a Warrant, the Holder must present and surrender this
Warrant Certificate at the Corporate Office (or such other office or agency of
AT&T Wireless in the United States as it may designate by notice in writing to
each Holder at the address of such Holder appearing in the Warrant Transfer
Books), with the Purchase Form on the reverse hereof duly executed by the Holder
hereof, with signature guaranteed as therein specified, together with the
Purchase Price for the share(s) of Underlying Stock as to which the
C-2
<PAGE>
Warrant(s) evidenced by this Warrant Certificate are submitted for exercise. The
Purchase Price shall be paid in United States dollars by wire transfer of
immediately available funds to an account or accounts designated by AT&T
Wireless from time to time (which information may be obtained by contacting AT&T
Wireless at the Corporate Office). AT&T Wireless shall pay all transfer, stamp
and other similar taxes that may be imposed in respect of the issuance or
delivery of the Warrants or in respect of the issuance or delivery by AT&T
Wireless of any securities upon exercise of the Warrants. AT&T Wireless shall
not be required, however, to pay any tax or other charge imposed in connection
with any transfer involved in the issue of any certificate for shares of
Underlying Stock or other securities underlying the Warrants or payment of cash
to any Person other than the Holder of a Warrant Certificate surrendered upon
the exercise or purchase of a Warrant, and in case of such transfer or payment,
AT&T Wireless shall not be required to issue any stock certificate or pay any
cash until such tax or other charge has been paid or it has been established to
AT&T Wireless's satisfaction that no such tax or other charge is due.
This Warrant Certificate and the rights hereunder are subject to
Transfer restrictions set forth in the Warrant Agreement. To the extent
transferable pursuant to the Warrant Agreement, this Warrant Certificate and all
rights hereunder are transferable by the Holder hereof, in whole or in part, on
the Warrant Transfer Books of AT&T Wireless upon surrender of this Warrant
Certificate to AT&T Wireless for registration of transfer at the office
maintained for this purpose, duly endorsed by, or accompanied by a written
instrument of transfer in form satisfactory to AT&T Wireless and duly executed
by, the Holder hereof or his attorney duly authorized in writing, with signature
guaranteed as specified in the attached Form of Assignment. Upon any partial
Transfer, AT&T Wireless will issue and deliver to such holder a new Warrant
Certificate or Certificates with respect to any portion not so Transferred.
No service charge shall be made to a Holder for any registration of
transfer or exchange of the Warrant Certificates, but AT&T Wireless may require
payment of a sum sufficient to cover any tax or other governmental charge
payable in connection therewith.
Only the registered Holder of this Warrant Certificate registered in
the Warrant Transfer Books shall be treated by AT&T Wireless and all other
persons dealing therewith as the owner thereof for any purpose and as the Person
entitled to exercise the rights represented thereby, any notice to the contrary
notwithstanding; and until such Transfer on such Warrant Transfer Books, AT&T
Wireless may treat the registered Holder thereof as the owner for all purposes.
This Warrant Certificate and the Warrant Agreement are subject to
amendment as provided in the Warrant Agreement.
C-3
<PAGE>
Copies of the Warrant Agreement are on file at the office of AT&T
Wireless and may be obtained by writing to AT&T Wireless at the following
address:
7277 164th Avenue, Northeast
Redmond, Washington 98501
Attn: General Counsel
Dated: _____________, 2001
AT&T WIRELESS SERVICES, INC.
By:________________________
Name:
Title:
C-4
<PAGE>
FORM OF REVERSE OF WARRANT CERTIFICATE
PURCHASE FORM
(To be executed only upon exercise of Warrant)
To: AT&T Wireless
The undersigned hereby (1) irrevocably elects to exercise _________
Warrants to purchase _________ share(s) of Underlying Stock and hereby makes
payment of the Purchase Price of $___________ (such payment being by wire
transfer in immediately available funds), all at the Exercise Price and on the
terms and conditions specified in the Warrant Certificate and the Warrant
Agreement therein referred to; (2) surrenders this Warrant Certificate and all
right, title and interest therein to AT&T Wireless; and (3) directs that the
shares of Underlying Stock deliverable upon the exercise of such Warrants be
registered in the name and delivered at the address specified below.
Date:______________
___________________________________*
(Signature of Owner)
___________________________________
(Street Address)
____________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
____________________________________**
_______________________
* The signature must correspond with the name as written upon the face of
the within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to AT&T Wireless.
** Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to AT&T Wireless.
C-5
<PAGE>
Securities and/or check to be issued to:
Please insert social security or identifying number:
Name:
Street Address:
City, State and Zip Code:
C-6
<PAGE>
FORM OF ASSIGNMENT
FOR VALUE RECEIVED the undersigned registered Holder of the within
Warrant Certificate hereby sells, assigns, and transfers unto the Assignee(s)
named below (including the undersigned with respect to any Warrants constituting
a part of the Warrants evidenced by the within Warrant Certificate not being
assigned hereby) all of the right of the undersigned under the within Warrant
Certificate, with respect to the number of Warrants set forth below:
<PAGE>
Social
Security or
other
Identifying
Names of Number of Number of
Assignees Address Assignee(s) Warrants
--------- ------- ------------ ---------
C-7
<PAGE>
and does hereby irrevocably constitute and appoint ____________________ the
undersigned's attorney to make such transfer on the books of ___________________
maintained for that purpose, with full power of substitution in the premises.
Date:______________________
___________________________________*
(Signature of Owner)
___________________________________
(Street Address)
____________________________________
(City) (State) (Zip Code)
Signature Guaranteed by:
____________________________________**
_______________________
* The signature must correspond with the name as written upon the face of the
within Warrant Certificate in every particular, without alteration or
enlargement or any change whatever, and must be guaranteed by a financial
institution satisfactory to AT&T Wireless.
** Signature must be guaranteed by an institution which is a member of one of
the following recognized Signature Guaranty Programs: (i) The Securities
Transfer Agent Medallion Program (STAMP); (ii) The New York Stock Exchange
Medallion Program (MSP); (iii) The Stock Exchange Medallion Program (SEMP);
or (iv) in such other guarantee programs acceptable to AT&T Wireless.
C-8
