Exhibit 10.1
AT&T CORP. AT&T WIRELESS SERVICES, INC.
295 North Maple Avenue 7277 164th Avenue, Northeast
Basking Ridge, New Jersey 07920 Redmond, Washington 98501
November 30, 2000
NTT DoCoMo, Inc.
Sanno Park Tower--41st Floor
11-1, Nagata-cho 2-chome
Chiyoda-ku,
Tokyo 100-6150
Attention: Dr. Tachikawa
Ladies and Gentlemen:
Reference is hereby made to the term sheet attached hereto as
Exhibit 1 (together with the attachments thereto, the "Term Sheet") regarding
certain agreements among AT&T Corp., a New York corporation ("AT&T"), AT&T
Wireless Services, Inc., a Delaware corporation ("AT&T-W"), and NTT DoCoMo,
Inc., a corporation organized under the laws of Japan ("DoCoMo"), and together
with AT&T and AT&T-W, the "Parties"), including a proposed investment by DoCoMo
in AT&T's Wireless Group and a proposed strategic alliance between DoCoMo and
AT&T's Wireless Group. In the event the Spin-off (as defined in the Term Sheet)
is to be effected by spinning off an entity other than AT&T-W, the corporation
that is the subject of the Spin-off (and that is or is to be the issuer of
publicly traded common stock representing the former AT&T Wireless Group) shall
execute this Letter Agreement (which includes the Term Sheet) and, upon doing
so, shall be substituted for AT&T-W and thereafter be deemed to be a Party
hereto.
1. Defined Terms. (a) The term "AT&T-W" shall refer to AT&T-W
or to the corporation (if not AT&T-W) that is the subject of the Spin-off (and
that is or is to be the issuer of publicly traded common stock representing the
former AT&T Wireless Group).
(b) The term "Alliance" shall mean the mobile multimedia alliance
contemplated by the Term Sheet.
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(c) The term "Investment" shall mean the purchase by DoCoMo (or one or
more of its designated wholly owned subsidiaries) of New AT&T-W Tracking Stock
and the Warrants as contemplated by the Term Sheet.
(d) In this Letter Agreement, the Term Sheet and the attachments and
annexes thereto and the documents delivered by the parties in connection
herewith: (i) references to "ABBA" shall be understood to be references to AT&T,
(ii) references to "ABBA-W" shall be understood to be references to AT&T-W, and
(iii) references to "Dylan" shall be understood to be references to DoCoMo.
(e) Capitalized terms used herein and not otherwise defined have the
meanings ascribed to them in the Term Sheet.
2. Binding Nature; Definitive Agreements. (a) The Term Sheet sets
forth the terms of the transactions contemplated hereby and thereby, including
the Investment and the Alliance. The Parties intend that the Term Sheet will be
superseded by definitive agreements, filings under state law and other legal
instruments, which will contain provisions incorporating the terms set forth in
the Term Sheet, together with provisions customary in the case of transactions
of the type described herein and therein, and such other provisions as are
reasonable and appropriate in the context of the transactions contemplated
hereby and thereby and to give effect thereto. The foregoing notwithstanding,
the Parties expressly acknowledge and agree that this Letter Agreement
(including the Term Sheet) constitutes a binding agreement among them, subject
to the terms and conditions set forth in this Letter Agreement (including the
Term Sheet), until definitive documentation is executed and delivered (except
that the effectiveness and enforceability of the provisions of the Term Sheet
are subject to certain conditions set forth in paragraph 4 below).
(b) The Parties intend to execute such definitive
documentation by December 15, 2000. If definitive documentation is not executed
and delivered with respect to any matter contained in the Term Sheet by December
22, 2000, then, at the request of any Party, the proposed definitive
documentation embodying the parties' differing views will immediately be
submitted to mediation before the first person listed under "Mediators" on
Exhibit 2 attached hereto (or if he is unable or unwilling to serve in such
capacity, then before the second person listed under "Mediators" on Exhibit 2)
in an effort to resolve any remaining differences among the Parties with respect
to such definitive documentation. Such mediation shall include at least two
meetings between the mediator and the Parties spanning a time period of at least
three weeks.
(c) In the event such differences are not resolved through such
mediation by January 12, 2001, DoCoMo and AT&T will each submit on such date its
proposed forms of each disputed provision of the definitive documentation to a
single arbitrator, who shall be the first person listed under "Arbitrators" on
Exhibit 2 (or if he is unable or unwilling to serve in such capacity, then the
second person listed under "Arbitrators" on Exhibit 2) for binding arbitration.
Notwithstanding the foregoing, if any differences relating to the certificate of
designations for the New AT&T-W Tracking Stock are not resolved through
mediation by January 5, 2001, DoCoMo and AT&T will each submit on such date its
proposed forms of each disputed provision of such certificate of designations to
the arbitrator as set forth in the preceding sentence for binding arbi-
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tration. Not later than January 19, 2001, in the case of the certificate of
designations, or January 31, 2001, in the case of any other definitive
documentation, the arbitrator, after hearing the Parties, will resolve each
disputed provision by selecting one of the two versions of each such provision
submitted. When each disputed provision is resolved in this manner, the
provisions selected by the arbitrator shall be inserted into the applicable
documents and such documents will become the definitive documentation with
respect to the matters set forth in the Term Sheet. The arbitrator shall make
his or her determination according to his or her best business judgment, and
principles of fairness and consistency with the Term Sheet. The arbitrator's
decision may be set forth in a declaratory award and judgment may be entered
thereon in any court identified in paragraph 6(g). Other than as set forth in
this paragraph, the arbitration shall be conducted in accordance with the
Commercial Arbitration Rules of the American Arbitration Association or any
successor thereof, and shall take place at an appointed time and place in New
York, New York.
3. Efforts. Each Party hereto agrees to act in good faith and to
use all reasonable efforts to consummate the transactions contemplated by this
Letter Agreement (including the Term Sheet), and to complete in a timely manner
the related definitive agreements, instruments and filings in a manner that best
gives effect to the terms set forth in the Term Sheet.
4. Effectiveness; Conditions. (a) The closing of the Investment and
initiation of the Alliance shall be conditioned upon (1) the expiration or
termination of any applicable waiting period under the Hart-Scott-Rodino
Antitrust Improvements Act of 1976, as amended (the "HSR Act"), (2) the absence
of any statute, rule, regulation, executive order, decree or injunction (each,
an "Order") having been enacted, entered, promulgated or enforced by any
governmental entity or judicial or regulatory authority (each, a "Governmental
Authority") of the United States, Japan, Canada or Mexico that has the effect of
making the Investment illegal or otherwise prohibiting the consummation of the
Investment, or that prohibits AT&T-W or DoCoMo from entering into the Alliance
materially as contemplated by the Term Sheet; (3) receipt or expiration of any
other material approval or waiting period required by a Governmental Authority,
if any, (4) receipt by DoCoMo of an opinion of counsel to AT&T (subject to
customary qualifications) as to (i) the due authorization and validity of the
New AT&T-W Tracking Stock, the Current AT&T-W Tracking Stock issuable upon
conversion thereof, the AT&T-W Common Stock issuable in exchange therefor in the
Spin-off, the Warrants and the New AT&T-W Tracking Stock or AT&T-W Common Stock
issuable upon exercise thereof, and (ii) the absence of conflict of the
transaction with the AT&T articles of incorporation , (5) the filing of a
certificate of designations relating to the New AT&T-W Tracking Stock with the
Secretary of State of the State of New York, (6) the truth and accuracy of AT&T
and AT&T-W's representations and warranties (which condition may be waived by
DoCoMo) and of DoCoMo's representations and warranties (which condition may be
waived by AT&T and AT&T-W) contained in Annex D to the Term Sheet and in this
Letter Agreement (in all material respects in the case of any such
representation or warranty that is not qualified by materiality) as of the
Closing Date (as defined below) as if made on and as of the Closing Date (except
that representations and warranties that by their terms speak only as of some
other date need be true and accurate as of such other date), (7) compliance in
all material respects by AT&T and AT&T-W with their pre-closing obligations
(which condition may be waived by DoCoMo) and compliance in all material
respects by DoCoMo with its pre-closing obligations (which condition may be
waived by AT&T and AT&T-W); and (8) delivery to DoCoMo (which condition may be
waived by DoCoMo) and
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to AT&T and AT&T-W (which condition may be waived by AT&T and AT&T-W) of
officer's certificates of AT&T and AT&T-W or of DoCoMo, as the case may be,
certifying as to the matters set forth in clauses (6) and (7) above on behalf of
the applicable Party.
(b) Unless otherwise agreed by the Parties, the purchase of New AT&T-W
Tracking Stock constituting the Investment shall occur on the later to occur of
(1) January 22, 2001 and (2) as promptly as practicable (but in no event more
than four business days) following the first date on which all of the conditions
have been satisfied (other than those conditions that by their nature are to be
satisfied by actions taken at the closing, which must be satisfied or waived at
the closing); provided that, in the event AT&T-W or its affiliates acquire
spectrum in the spectrum auction scheduled to commence in December 2000 and
AT&T-W or such affiliates are required to fund the purchase of such spectrum
prior to January 22, 2001, the purchase by DoCoMo of up to $1 billion of New
AT&T-W Tracking Stock shall occur no later than the day prior to the date such
funding is required (but in any event no earlier than January 15, 2001), subject
to the satisfaction of the conditions set forth in paragraph 4(a) and the
provision of notice by AT&T-W to DoCoMo of the potential need for such funding
at least five business days prior to such earlier closing. For the avoidance of
doubt, such closing(s) shall occur as set forth above even if the definitive
documentation has not been completed or the arbitration with respect thereto has
not been resolved, provided that any arbitration with respect to the definitive
documentation shall continue in order to arrive at the final definitive
documentation as rapidly as possible thereafter. The date of consummation of the
Investment is referred to as the "Closing Date."
5. Termination. (a) This Letter Agreement may be terminated at any time
by mutual written agreement of all of the Parties hereto.
(b) If any of the conditions set forth in clauses (4)(a)(1), (2) or
(3) becomes permanently incapable of being satisfied by virtue of any order,
decree or ruling or other action taken by any Governmental Authority that is
final and nonappealable, then any Party hereto (other than any Party (treating
AT&T and AT&T-W as a single party) whose failure to comply with its obligations
hereunder shall have caused such failure to occur or who has failed to use its
reasonable best efforts to cause any such order, decree or ruling to be lifted)
may terminate this Letter Agreement by sending written notice to each of the
other Parties.
(c) If the Investment is not consummated on or before March 31, 2001
(the "Outside Date"), then any Party hereto (other than any Party (treating AT&T
and AT&T-W as a single party) whose failure to comply with its obligations
hereunder shall have caused such failure to occur or who has failed to use its
reasonable best efforts to consummate the Investment) may terminate this Letter
Agreement by sending written notice to each of the other Parties. The Outside
Date shall be extended to August 15, 2001 in the event that the failure to
consummate the investment is due to the failure of any condition set forth in
Section 4(a)(1), (2) or (3) to be satisfied by March 31, 2001.
(d) Upon any termination in accordance with this Section 5, this
Letter Agreement (including the Term Sheet) shall be null and void and of
no further force or effect, but such termination shall not relieve any Party
from liability for any breach of this Letter Agreement.
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6. Miscellaneous.
(a) Representations and Warranties. Each Party severally represents to
each of the other Parties that (A) this Letter Agreement (including the Term
Sheet) has been duly authorized, executed and delivered by such Party and
constitutes the legal, valid and binding obligation of such Party and
enforceable against such Party in accordance with its terms, except as such
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium and similar laws affecting the rights of creditors generally and by
general principles of equity, and (B) such Party has the necessary corporate or
other power and authority to enter into this Letter Agreement (including the
Term Sheet) and, subject to the satisfaction of the conditions set forth in
Section 4 hereof, to consummate the Investment and the Alliance and otherwise to
carry out its obligations hereunder and thereunder. In addition, the
representations and warranties of each Party contained in Annex D to the Term
Sheet shall be effective as of the date hereof as if set forth in full
herein.
(b) Expenses. Except as otherwise provided herein or in the Term
Sheet, all costs and expenses incurred in connection with this Letter Agreement
and the transactions contemplated hereby shall be paid by the Party incurring
such costs and expenses.
(c) Entire Agreement; No Third-Party Beneficiaries. This Letter
Agreement (including the Term Sheet), and the letter agreement of even date
herewith, by and among AT&T, AT&T-W and DoCoMo, constitute the entire agreement
and, except as expressly set forth herein, supersedes any and all other prior
agreements and undertakings, both written and oral, among the Parties, or any of
them, with respect to the subject matter hereof. This Letter Agreement
(including the Term Sheet) shall be only for the benefit of the Parties and is
not intended for the benefit of any other party (except to one or more wholly
owned subsidiaries of DoCoMo to which DoCoMo may assign its right to purchase
hereunder).
(d) Assignment; Successors. 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, except that
DoCoMo may assign its right to purchase hereunder to one or more wholly owned
subsidiaries of DoCoMo (so long as they remain wholly owned subsidiaries of
DoCoMo), provided that such subsidiary or subsidiaries shall be bound by all the
provisions of this Letter Agreement (including the Term Sheet) and that DoCoMo
shall not be released from its obligations hereunder by virtue of such
assignment. Subject to the preceding sentence, this Letter Agreement will be
binding upon, inure to the benefit of and be enforceable by the Parties and
their respective successors and assigns.
(e) Amendment; Waiver. (i) This Letter Agreement and/or the Term Sheet
may be amended at any time pursuant to a writing executed by each Party hereto.
(ii) Any Party hereto may (A) extend the time for the performance
of any of the obligations or other acts of the others or (B) waive compliance
with any of the agreements or conditions contained herein. Any agreement on the
part of a Party to any such extension or waiver shall be valid only as against
such Party and only if set forth in an instrument in writing signed by such
Party.
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(f) 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 that
State, without giving effect to the conflicts of laws principles thereof.
(g) Submission to Jurisdiction; Waivers. Each of the Parties hereto
irrevocably agrees that any legal action or proceeding with respect to this
Letter Agreement (including the Term Sheet) or for recognition and enforcement
of any judgment in respect hereof, other than with respect to any dispute
subject to mediation and arbitration under paragraph 2 (but including for
enforcement of the arbitration provisions contained in paragraph 2 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
Letter Agreement (including the Term Sheet), (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 paragraph (k) of this Section
6, (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 Letter Agreement (including the Term
Sheet), or the subject mater hereof, may not be enforced in or by such courts.
(h) Waiver of Immunity. DoCoMo 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, 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 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
Letter Agreement (including the Term Sheet) or the subject matter hereof
(including any obligation for the payment of money). DoCoMo 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. ss. 1602 et seq. The foregoing waiver shall constitute a present
waiver of immunity at any time any action is initiated against DoCoMo with
respect to this Letter Agreement (including the Term Sheet) or the subject
matter hereof (including any obligation for the payment of money).
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(i) Counterparts. This Letter Agreement may be executed in counter-
parts, each of which shall be deemed an original and all of which shall
constitute one and the same instrument.
(j) Effectiveness. This Letter Agreement shall not be effective as to
or binding upon any Party until executed and delivered by all of the Parties.
(k) Notices. Except as otherwise provided in this Letter Agreement or
the Term Sheet, all notices, requests, claims, demands, waivers and other
communications hereunder shall be in writing and shall be deemed to have been
duly given when delivered by hand, when delivered personally or by courier, when
received by facsimile transmission if promptly confirmed by telephone, or three
days after being deposited in the U.S. mail (registered or certified mail,
postage prepaid, return receipt requested), as follows:
If to DoCoMo:
Sanno Park Tower--41st Floor
11-1, Nagata-cho 2-chome
Chiyoda-ku,
Tokyo 100-6150
Attention: Global Business Department,
Kiyoyuki Tsujimura,
Managing Director
Fax: 81-3-5156-0204
with a copy to:
Sullivan & Cromwell
1888 Century Park East
Los Angeles, CA 90067
Attention: Alison S. Ressler
Fax: (310) 712-8800
If to AT&T:
AT&T Corp.
295 North Maple Avenue
Basking Ridge, New Jersey 07920
Attention: Marilyn J. Wasser
Secretary and Vice President - Law
Fax: (908) 221-6618
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with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: Steven A. Rosenblum
David M. Silk
Fax: (212) 403-2000
If to AT&T-W:
AT&T Wireless Services, Inc.
7277 164th Avenue, Northeast
Redmond, Washington 98501
Attention: Greg Landis
General Counsel
Fax: (425) 580-8050
with a copy to:
Wachtell, Lipton, Rosen & Katz
51 West 52nd Street
New York, NY 10019
Attention: Steven A. Rosenblum
David M. Silk
Fax: (212) 403-2000
or to such other address, facsimile number or telephone as either party may,
from time to time, designate in a written notice given in a like manner.
[Remainder of Page Intentionally Left Blank]
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If the foregoing is in accordance with your understanding
please indicate your agreement by signing below.
Very truly yours,
AT&T CORP.
By: /s/ C. Michael Armstrong
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Name: C. Michael Armstrong
Title: Chairman and Chief Executive Officer
AT&T WIRELESS SERVICES, INC.
By: /s/ John D. Zeglis
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Name: John D. Zeglis
Title: Chief Executive Officer
Accepted and Agreed as of the date first above written:
NTT DOCOMO, INC.
By: /s/ Keiji Tachikawa
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Name: Keiji Tachikawa
Title: President and Chief Executive Officer
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