Preview
Full Doc
 | 2002 |
364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]
364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated] (218K)
Doc #269716: Click preview link for longer preview.
AMENDED AND RESTATED
364-DAY
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
Dated as of March 19, 2002
among
AT&T WIRELESS SERVICES, INC.,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK and BANK OF AMERICA, N.A.,
as Administrative Agents,
JPMORGAN CHASE BANK,
as Paying Agent,
CITIBANK, N.A. and MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agents
and
HSBC BANK USA and LEHMAN BROTHERS COMMERCIAL PAPER INC.,
as Documentation Agents
------------------
J.P. MORGAN SECURITIES INC. and BANC OF AMERICA SECURITIES LLC,
as Joint Lead Arrangers and Bookrunners
================================================================================
[CS&M #6701-173]
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C} {C}
ARTICLE I
Definitions
SECTION 1.01. Defined Terms................................................................1
SECTION 1.02. Terms Generally.............................................................14
ARTICLE II
The Credits
SECTION 2.01. Commitments.................................................................14
SECTION 2.02. Loans.......................................................................15
SECTION 2.03. Competitive Bid Procedure...................................................16
SECTION 2.04. Standby Borrowing Procedure.................................................18
SECTION 2.05. Conversion and Continuation of Standby Loans................................18
SECTION 2.06. Fees........................................................................20
SECTION 2.07. Extension of Maturity Date..................................................20
SECTION 2.08. Repayment of Loans; Evidence of Debt........................................21
SECTION 2.09. Interest on Loans...........................................................21
SECTION 2.10. Default Interest............................................................22
SECTION 2.11. Alternate Rate of Interest..................................................22
SECTION 2.12. Termination and Reduction of Commitments....................................22
SECTION 2.13. Prepayment..................................................................23
SECTION 2.14. Reserve Requirements; Change in Circumstances...............................23
SECTION 2.15. Change in Legality..........................................................25
SECTION 2.16. Indemnity...................................................................26
SECTION 2.17. Pro Rata Treatment..........................................................27
SECTION 2.18. Sharing of Setoffs..........................................................27
SECTION 2.19. Payments....................................................................28
SECTION 2.20. Taxes.......................................................................28
SECTION 2.21. Mandatory Assignment; Commitment Termination................................30
SECTION 2.22. Change of Control...........................................................31
ARTICLE III
Representations and Warranties
SECTION 3.01. Organization; Powers........................................................32
{/TABLE}
i
{PAGE}
{TABLE}
{S} {C} {C}
SECTION 3.02. Authorization...............................................................32
SECTION 3.03. Enforceability..............................................................32
SECTION 3.04. Governmental Approvals......................................................33
SECTION 3.05. Financial Statements........................................................33
SECTION 3.06. Litigation; Compliance with Laws............................................33
SECTION 3.07. Federal Reserve Regulations.................................................34
SECTION 3.08. Investment Company Act; Public Utility Holding Company Act..................34
SECTION 3.09. Use of Proceeds.............................................................34
SECTION 3.10. No Material Misstatements...................................................34
SECTION 3.11. Tax Returns.................................................................34
SECTION 3.12. ERISA.......................................................................34
SECTION 3.13. Environmental Matters.......................................................34
SECTION 3.14. Contribution................................................................35
ARTICLE IV
Conditions of Lending
SECTION 4.01. All Borrowings..............................................................35
SECTION 4.02. Closing Date................................................................35
ARTICLE V
Affirmative Covenants
SECTION 5.01. Existence; Conduct of Business..............................................35
SECTION 5.02. Financial Statements, Reports, etc..........................................36
SECTION 5.03. Records; Inspection Rights..................................................36
SECTION 5.04. Use of Proceeds.............................................................37
SECTION 5.05. Notices of Material Events..................................................37
SECTION 5.06. Payment of Obligations......................................................37
SECTION 5.07. Maintenance of Properties; Insurance........................................37
SECTION 5.08. Compliance with Laws........................................................37
ARTICLE VI
Negative Covenants
SECTION 6.01. Limitation on Liens.........................................................38
SECTION 6.02. Limitations on Indebtedness.................................................39
SECTION 6.03. Interest Coverage Test......................................................39
SECTION 6.04. Payment of Dividends........................................................39
SECTION 6.05. Consolidations, Mergers and Sales of Assets.................................39
{/TABLE}
ii
{PAGE}
{TABLE}
{S} {C} {C}
ARTICLE VII
Events of Default
ARTICLE VIII
The Agents
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.....................................................................44
SECTION 9.02. Survival of Agreement.......................................................45
SECTION 9.03. Binding Effect..............................................................45
SECTION 9.04. Successors and Assigns......................................................45
SECTION 9.05. Expenses; Indemnity.........................................................48
SECTION 9.06. Applicable Law..............................................................49
SECTION 9.07. Waivers; Amendment..........................................................49
SECTION 9.08. Entire Agreement............................................................49
SECTION 9.09. Severability................................................................50
SECTION 9.10. Counterparts................................................................50
269716
|
AT&T Wireless
As referenced in this 364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]:
AT&T WIRELESS SERVICES, – 10.1
EXECUTION COPY
================================================================================
AMENDED AND RESTATED
364-DAY
COMPETITIVE ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
Dated as of March 19, 2002
among
AT&T WIRELESS SERVICES, INC.,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK and BANK OF AMERICA, N.A.,
as Administrative Agents,
JPMORGAN CHASE BANK,
as Paying
_____________
AT&T WIRELESS
SERVICES, – Commitments
{/TABLE}
iii
{PAGE}
AMENDED AND RESTATED 364-DAY COMPETITIVE
ADVANCE AND REVOLVING CREDIT FACILITY AGREEMENT
dated as of March 15, 2002, among AT&T WIRELESS
SERVICES, INC., a Delaware corporation (the
"Borrower"); the Lenders from time to time party
hereto; JPMORGAN CHASE ("JPMCB") and BANK OF
AMERICA, N.
_____________
AT&T Wireless Services, – telex, telecopy, graphic scanning or other
telegraphic communications equipment of the sending party, as follows:
(a) if to the Borrower, to it at AT&T Wireless Services, Inc., if
by courier, to 7277 164th Avenue NE-Bldg 1, Redmond, Washington 98052,
and if by mail, to P.O. Box
_____________
AT&T WIRELESS SERVICES, – Lenders have
caused this Agreement to be duly executed by their respective authorized
officers as of the day and year first above written.
AT&T WIRELESS SERVICES, INC.,
by
--------------------------------------
Name:
Title:
Website:
JPMORGAN CHASE BANK, individually and as
an Agent,
by
--------------------------------------
Name:
Title:
BANK OF AMERICA, N.A., individually
_____________
AT&T Wireless Services, – Paying Agent
for the Lenders referred to below,
270 Park Avenue
New York, N.Y. 10017
Attention: [Date]
Ladies and Gentlemen:
The undersigned, AT&T Wireless Services, Inc. (the "Borrower"),
refers to the Amended and Restated 364-Day Competitive Advance and Revolving
Credit Facility Agreement dated as of March
_____________
dt 179776
;
AT&T
As referenced in this 364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]:
AT&T Corp – accepted by the Paying Agent in accordance with Section 9.04(e),
in the form of Exhibit C hereto.
"AT&T" shall mean AT&T Corp ., a Delaware corporation.
{PAGE}
4
"AT&T Wireless Group" shall refer to such entity described in the
Form S-4.
"AT&T
_____________
dt 177641
;
Citibank
As referenced in this 364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]:
CITIBANK, N.A. – INC.,
THE LENDERS PARTY HERETO,
JPMORGAN CHASE BANK and BANK OF AMERICA, N.A.,
as Administrative Agents,
JPMORGAN CHASE BANK,
as Paying Agent,
CITIBANK, N.A. and MERRILL LYNCH CAPITAL CORPORATION,
as Syndication Agents
and
HSBC BANK USA and LEHMAN BROTHERS COMMERCIAL PAPER INC.,
as Documentation Agents
------------------
J.
_____________
Citibank, N.A. – any document
furnished hereunder or thereunder.
Each of the Borrower and its Subsidiaries and the Lenders
acknowledges that Merrill Lynch Capital Corporation and Citibank, N.A. have no
responsibilities or obligations pursuant to this Agreement in their capacity as
syndication agents.
ARTICLE IX
Miscellaneous
SECTION 9.01. Notices.
_____________
Citibank, N.A. – of America, N.A. $70.0
901 Main St. (64th Floor)
Dallas, TX 75202
Attention: Niles Chura
Facsimile: 214-209-9390
SYNDICATION AGENTS
Citibank, N.A. $70.0
Merrill Lynch Capital Corporation $70.0
DOCUMENTATION AGENTS
HSBC Bank USA $70.0
Lehman Brothers Commercial Paper Inc. $70.0
_____________
dt 177490
;
|
McGraw-Hill Companies
As referenced in this 364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]:
McGraw-Hill Companies, Inc – obligations
of such corporation in respect of the Loan Documents.
"S&P" shall mean Standard & Poor's Ratings Services, a division
of The McGraw-Hill Companies, Inc . or any successor rating agency.
"SEC" shall mean the United States Securities and Exchange
Commission.
"Short-Term Debt" shall mean senior, unsecured
_____________
dt 311763
;
NTT DoCoMo
As referenced in this 364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]:
NTT DoCoMo Inc – similar transaction (including any option with
respect to any of the foregoing transactions) or any combination of the
foregoing transactions.
"DoCoMo" shall mean NTT DoCoMo Inc ., a corporation organized
under the laws of Japan, and its successors and assigns.
{PAGE}
6
"DoCoMo Investment" shall mean the acquisition by
_____________
dt 277034
;
More... |
Preview
Full Doc
| 2002 |
364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]
364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated] (266K)
Doc #318050: Click preview link for longer preview.
AMENDED AND RESTATED 364-DAY
COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
Dated as of December 14, 2001
among
AT&T CORP.,
THE LENDERS PARTY HERETO,
CITIBANK, N.A., CREDIT SUISSE FIRST BOSTON,
DEUTSCHE BANK AG NEW YORK BRANCH and
GOLDMAN
SACHS CREDIT PARTNERS L.P.,
as Administrative Agents,
and
CITIBANK, N.A.,
as Paying Agent,
with
SALOMON SMITH BARNEY INC., CREDIT SUISSE
FIRST BOSTON, DEUTSCHE BANC
ALEX. BROWN INC. and GOLDMAN SACHS
CREDIT PARTNERS L.P.,
as Joint Lead Arrangers and Bookrunners
and
BANK ONE, NA, THE BANK OF TOKYO-
MITSUBISHI, LTD., NEW YORK BRANCH, BANK OF
AMERICA, N.A., BARCLAYS BANK PLC, BNP
PARIBAS, THE ROYAL BANK OF SCOTLAND PLC,
NEW YORK BRANCH, INTESABCI, NEW YORK
BRANCH, THE FUJI BANK, LIMITED, HSBC BANK
USA, and FIRST UNION NATIONAL BANK,
as Co-Arrangers
{PAGE}
i
TABLE OF CONTENTS
Page
ARTICLE I Definitions
SECTION 1.01. Defined Terms..........................................1
ARTICLE II The Credits
SECTION 2.01. Commitments...........................................17
SECTION 2.02. Loans.................................................17
SECTION 2.03. Competitive Bid Procedure.............................18
SECTION 2.04. Standby Borrowing Procedure...........................20
SECTION 2.05. Conversion and Continuation of Standby Loans..........20
SECTION 2.06. Fees..................................................21
SECTION 2.07. Repayment of Loans; Evidence of Debt..................22
SECTION 2.08. Interest on Loans.....................................22
SECTION 2.09. Default Interest......................................23
SECTION 2.10. Alternate Rate of Interest............................23
SECTION 2.11. Termination and Reduction of Commitments..............23
SECTION 2.12. Prepayment............................................24
SECTION 2.13. Reserve Requirements; Change in Circumstances.........24
SECTION 2.14. Change in Legality....................................26
SECTION 2.15. Indemnity.............................................26
SECTION 2.16. Pro Rata Treatment....................................27
SECTION 2.17. Sharing of Setoffs....................................27
SECTION 2.18. Payments..............................................28
SECTION 2.19. Taxes.................................................28
SECTION 2.20. Mandatory Assignment; Commitment Termination..........30
ARTICLE III Representations and Warranties
SECTION 3.01. Organization; Powers..................................30
SECTION 3.02. Authorization.........................................31
SECTION 3.03. Enforceability........................................31
SECTION 3.04. Governmental Approvals................................31
SECTION 3.05. Financial Statements..................................31
SECTION 3.06. Litigation; Compliance with Laws......................31
SECTION 3.07. Federal Reserve Regulations...........................32
SECTION 3.08. Investment Company Act; Public Utility
Holding Company Act...................................32
SECTION 3.09. Use of Proceeds.......................................32
SECTION 3.10. No Material Misstatements.............................32
ARTICLE IV Conditions of Effectiveness and of Lending
SECTION 4.01. All Borrowings........................................32
SECTION 4.02. Closing Date..........................................33
ARTICLE V Covenants
SECTION 5.01. Existence.............................................33
SECTION 5.02. Financial Statements, Reports, Etc....................33
{PAGE}
ii
SECTION 5.03. Maintaining Records...................................34
SECTION 5.04. Use of Proceeds.......................................34
SECTION 5.05. Consolidations, Mergers, Sales of Assets
and Separation Transactions...........................34
SECTION 5.06. Limitations on Liens..................................35
SECTION 5.07. Limitations on Sale and Leaseback Transactions........35
SECTION 5.08. Total Debt to EBITDA Ratio............................35
ARTICLE VI Events of Default
ARTICLE VII The Agents
ARTICLE VIII Miscellaneous
SECTION 8.01. Notices...............................................39
SECTION 8.02. Survival of Agreement.................................39
SECTION 8.03. Binding Effect........................................39
SECTION 8.04. Successors and Assigns................................40
SECTION 8.05. Expenses; Indemnity...................................42
SECTION 8.06. Applicable Law........................................42
SECTION 8.07. Waivers; Amendment....................................43
SECTION 8.08. Entire Agreement......................................43
SECTION 8.09. Severability..........................................43
SECTION 8.10. Counterparts..........................................43
SECTION 8.11. Headings..............................................43
SECTION 8.12. Jurisdiction, Etc.....................................43
SECTION 8.13. Waiver of Jury Trial...................................1
{PAGE}
iii
Exhibits and Schedules
Exhibit A-1 Form of Competitive Bid Request
Exhibit A-2 Form of Notice of Competitive Bid Request
Exhibit A-3 Form of Competitive Bid
Exhibit A-4 Form of Competitive Bid Accept/Reject Letter
Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Opinion of Counsel for AT&T Corp.
Exhibit D Form of Note
Exhibit E Form of AT&T Business Guaranty
Schedule 2.01 Commitments
{PAGE}
AMENDED AND RESTATED 364-DAY COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT (the "Agreement") dated as of December [__], 2001,
among AT&T CORP., a New York corporation (the "Borrower"), the lenders listed in
Schedule 2.01 (the "Lenders"), CITIBANK, N.A. ("Citibank"), CREDIT SUISSE FIRST
BOSTON ("CSFB"), DEUTSCHE BANK AG NEW YORK BRANCH ("DB") and GOLDMAN SACHS
CREDIT PARTNERS L.P. ("GSCP"), as administrative agents for the Lenders (in such
capacity, the "Administrative Agents"), Citibank, as paying agent for the
Lenders (in such capacity, the "Paying Agent") and with SALOMON SMITH BARNEY
INC., CSFB, DEUTSCHE BANC ALEX. BROWN INC. ("DBAB") and GSCP, as joint lead
arrangers and bookrunners (the "Joint Lead Arrangers").
PRELIMINARY STATEMENTS
(1) The Borrower is a party to that certain 364-Day Competitive Advance and
Revolving Credit Facility Agreement dated as of December 28, 2000, among the
Borrower, the lenders party thereto, the co-arrangers party thereto, The Chase
Manhattan Bank ("Chase"), CSFB and GSCP, as administrative agents, Chase, as
paying agent, and Chase Securities Inc., CSFB and GSCP, as joint lead arrangers
and bookrunners (the "Existing Bank Agreement").
(2) The parties hereto have agreed to amend and restate the Existing Bank
Agreement, on the terms and conditions hereinafter set forth, to provide for,
among other things, a reduction in the Total Commitment of the Lenders
hereunder.
(3) The Borrower has requested that the Lenders continue to extend credit to the
Borrower to enable it to borrow on a standby revolving credit basis on and after
the date hereof and at any time and from time to time prior to the Maturity Date
(as herein defined) a principal amount not in excess of $8,000,000,000 at any
time outstanding. The Borrower has also requested that the Lenders continue to
provide a procedure pursuant to which the Borrower may invite the Lenders to bid
on an uncommitted basis on short-term borrowings by the Borrower maturing on or
prior to the Maturity Date. The proceeds of such borrowings are to be used to
refinance the Existing Bank Agreement (as hereinafter defined) and for other
general corporate purposes of the Borrower, including the repayment of maturing
commercial paper of the Borrower. The Lenders are willing to extend such credit
to the Borrower on the terms and subject to the conditions herein set forth.
Accordingly, the Borrower, the Lenders and the Agents agree that, effective as
of the Closing Date, the Existing Bank Agreement is hereby amended and restated
in its entirety to read as follows:
DEFINITIONS
DEFINED TERMS. As used in this Agreement, the following terms shall have the
meanings specified below:
"ABR Borrowing" shall mean a Borrowing comprised of ABR Loans.
"ABR Loan" shall mean any Standby Loan bearing interest at a
rate determined by reference to the Alternate Base Rate in accordance
with the provisions of Article II.
"Administrative Agents" shall have the meaning specified in
the recital of parties to this Agreement.
"Administrative Fees" shall have the meaning assigned to such
term in Section 2.06(c).
{PAGE}
2
"Affiliate" shall mean, when used with respect to a specified
person, another person that directly or indirectly controls or is
controlled by or is under common control with the person specified.
"Agent Parties" shall mean the Agents and the Joint Lead
Arrangers.
"Agents" shall mean the Administrative Agents and the Paying
Agent.
"Alternate Base Rate" shall mean, for any day, a rate per
annum (rounded upwards, if necessary, to the next 1/16 of 1%) equal to
the greater of (a) the Prime Rate in effect on such day and (b) the
Federal Funds Effective Rate in effect on such day plus 1/2 of 1%. For
purposes hereof, "Prime Rate" shall mean the rate of interest per annum
publicly announced from time to time by the Paying Agent as its prime
rate in effect at its principal office in New York City; each change in
the Prime Rate shall be effective on the date such change is publicly
announced as effective. For purposes hereof, "Federal Funds Effective
Rate" shall mean, for any day, the weighted average of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers, as released on the
next succeeding Business Day by the Federal Reserve Bank of New York,
or, if such rate is not so released for any day which is a Business
Day, the arithmetic average (rounded upwards to the next 1/100th of
1%), as determined by the Paying Agent, of the quotations for the day
of such transactions received by the Paying Agent from three Federal
funds brokers of recognized standing selected by it. If for any reason
the Paying Agent shall have determined (which determination shall be
conclusive absent manifest error) that it is unable to ascertain the
Federal Funds Effective Rate for any reason, including the inability or
failure of the Paying Agent to obtain sufficient quotations in
accordance with the terms thereof, the Alternate Base Rate shall be
determined without regard to clause (b) of the first sentence of this
definition until the circumstances giving rise to such inability no
longer exist. Any change in the Alternate Base Rate due to a change in
the Prime Rate or the Federal Funds Effective Rate shall be effective
on the effective date of such change in the Prime Rate or the Federal
Funds Effective Rate, respectively.
"Applicable Facility Fee Percentage" shall mean on any date, a
percentage per annum determined by reference to the Public Debt Ratings
in effect on such date as set forth below:
{PAGE}
3
APPLICABLE FACILITY FEE PERCENTAGE PRICING GRID
{TABLE}
{CAPTION}
APPLICABLE
PUBLIC DEBT FACILITY
RATINGS FEE
S&P/MOODY'S PERCENTAGE
----------- ----------
{S} {C}
Level 1
Greater than or 0.075%
equal
to A and A2
Level 2
Greater than or 0.085%
equal to
A- or A3 and
A-1 and P-1 but
less than Level 1
Level 3
Greater than or 0.10%
equal to A- or
A3 and A-2 and
P-2 but less
than Level 2
Level 4
Greater than or 0.10%
equal to BBB+
or Baa1 but less
than Level 3
Level 5
Greater than or
equal to BBB or
Baa2 but less 0.125%
than Level 4
Level 6
Less than BBB
and Baa2 0.175%
{/TABLE}
"Applicable Margin" shall mean on any date, with respect to
Eurodollar Standby Loans, a percentage per annum determined by
reference to the Public Debt Ratings in effect on such date as set
forth below:
{PAGE}
4
APPLICABLE MARGIN PRICING GRID
{TABLE}
{CAPTION}
PUBLIC DEBT
RATINGS APPLICABLE
S&P/MOODY'S MARGIN
{S} {C}
Level 1
Greater than or 0.325%
equal
to A and A2
Level 2
Greater than or 0.415%
equal to
A- or A3 and
A-1 and P-1 but
less than Level 1
Level 3
Greater than or 0.525%
equal to A- or
A3 and A-2 and
P-2 but less
than Level 2
Level 4
Greater than or 0.65%
equal to BBB+
or Baa1 but
less
than Level 3
Level 5
Greater than or
equal to BBB or
Baa2 but less 0.875%
than Level 4
Level 6
Less than BBB
and Baa2 1.325%
{/TABLE}
"Assignment and Acceptance" shall mean an assignment and
acceptance entered into by a Lender and an assignee with the consent of
the Borrower, and accepted by the Paying Agent in accordance with
Section 8.04(e), substantially in the form of Exhibit B hereto.
"AT&T Broadband" means the Borrower's broadband business;
provided that for purposes of the definition of "Indebtedness", "AT&T
Broadband" shall mean any Person or Persons (whether existing as of the
date hereof or subsequently formed) holding any significant portion of
the Borrower's broadband business upon consummation of a Separation
Transaction.
{PAGE}
5
"AT&T Business" means a Person (whether existing as of the
date hereof or subsequently formed) that holds all or substantially all
of the Borrower's consumer services and business services businesses
upon consummation of a Separation Transaction involving AT&T Broadband.
"AT&T Business Spinoff" has the meaning set forth in Section
5.05(c).
"AT&T Latin America" means AT&T Latin America Corp., a
Delaware corporation.
"At Home Corporation" means At Home Corporation, a Delaware
corporation.
"Attributable Debt" shall mean, as of the date of its
determination, the present value (discounted semiannually at an
interest rate implicit in the terms of the lease) of the obligation of
a lessee for rental payments pursuant to any Sale and Leaseback
Transaction (reduced by the amount of the rental obligations of any
sublessee of all or part of the same property) during the remaining
term of such Sale and Leaseback Transaction (including any period for
which the lease relating thereto has been extended), such rental
payments not to include amounts payable by the lessee for maintenance
and repairs, insurance, taxes, assessments and similar charges and for
contingent rents (such as those based on sales); provided, however,
that in the case of any Sale and Leaseback Transaction in which the
lease is terminable by the lessee upon the payment of a penalty,
Attributable Debt shall mean the lesser of the present value of (a) the
rental payments to be paid under such Sale and Leaseback Transaction
until the first date (after the date of such determination) upon which
it may be so terminated plus the then applicable penalty upon such
termination and (b) the rental payments required to be paid during the
remaining term of such Sale and Leaseback Transaction (assuming such
termination provision is not exercised).
"Board" shall mean the Board of Governors of the Federal
Reserve System of the United States.
"Board of Directors" shall mean the Board of Directors of the
Borrower or any duly authorized committee thereof.
"Borrowing" shall mean a group of Loans of a single Type made
by the Lenders (or, in the case of a Competitive Borrowing, by the
Lender or Lenders whose Competitive Bids have been accepted pursuant to
Section 2.03) on a single date and as to which a single Interest Period
is in effect.
"Business Day" shall mean any day (other than a day which is a
Saturday, Sunday or legal holiday in the State of New York) on which
banks are open for business in New York City; provided, however, that,
when used in connection with a Eurodollar Loan, the term "Business Day"
shall also exclude any day on which banks are not open for dealings in
dollar deposits in the London interbank market.
"Closing Date" shall mean the date hereof.
{PAGE}
6
"Code" shall mean the Internal Revenue Code of 1986, as the
same may be amended from time to time.
"Commitment" shall mean, with respect to each Lender, the
Commitment of such Lender as set forth in Schedule 2.01 hereto.
"Competitive Bid" shall mean an offer by a Lender to make a
Competitive Loan pursuant to Section 2.03.
"Competitive Bid Accept/Reject Letter" shall mean a
notification made by the Borrower pursuant to Section 2.03(d) in the
form of Exhibit A-4.
"Competitive Bid Rate" shall mean, as to any Competitive Bid
made by a Lender pursuant to Section 2.03(b), (i) in the case of a
Eurodollar Loan, the Margin, and (ii) in the case of a Fixed Rate Loan,
the fixed rate of interest offered by the Lender making such
Competitive Bid.
"Competitive Bid Request" shall mean a request made pursuant
to Section 2.03 in the form of Exhibit A-1.
"Competitive Borrowing" shall mean a Borrowing consisting of a
Competitive Loan or concurrent Competitive Loans from the Lender or
Lenders whose Competitive Bids for such Borrowing have been accepted by
the Borrower under the bidding procedure described in Section 2.03.
"Competitive Loan" shall mean a Loan from a Lender to the
Borrower pursuant to the bidding procedure described in Section 2.03.
Each Competitive Loan shall be a Eurodollar Competitive Loan or a Fixed
Rate Loan.
"Consolidated" refers to the consolidation of accounts in
accordance with GAAP.
"Consolidated Net Tangible Assets" shall mean, at any date, as
to the Borrower, the total assets appearing on the most recently
prepared consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of the most recent fiscal
quarter of the Borrower for which such balance sheet is available,
prepared in accordance with GAAP, less (a) all current liabilities as
shown on such balance sheet and (b) Intangible Assets.
"Default" shall mean any event or condition which upon notice,
lapse of time or both would constitute an Event of Default.
"dollars" or "$" shall mean lawful money of the United States
of America.
"Equity Interests" means, with respect to any Person, shares
of capital stock of (or other ownership or profit interests in) such
Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, securities convertible
into or exchangeable for shares of capital stock of (or other ownership
or profit interests in) such Person or
{PAGE}
7
warrants, rights or options for the purchase or other acquisition from
such Person of such shares (or such other interests), and other
ownership or profit interests in such Person (including, without
limitation, partnership, member or trust interests therein), whether
voting or nonvoting, and whether or not such shares, warrants, options,
rights or other interests are authorized or otherwise existing on any
date of determination.
"Eurodollar Borrowing" shall mean a Borrowing comprised of
Eurodollar Loans.
"Eurodollar Competitive Loan" shall mean any Competitive Loan
bearing interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Eurodollar Loan" shall mean any Eurodollar Competitive Loan
or Eurodollar Standby Loan.
"Eurodollar Standby Loan" shall mean any Standby Loan bearing
interest at a rate determined by reference to the LIBO Rate in
accordance with the provisions of Article II.
"Event of Default" shall have the meaning assigned to such
term in Article VI.
"Exchange Act" shall mean the Securities Exchange Act of 1934,
as amended.
"Existing Bank Agreement" shall have the meaning set forth in
Preliminary Statement No. (1).
"Facility Fee" shall have the meaning assigned to such term in
Section 2.06(a).
"Fee Letter" shall mean the Fee Letter dated October 19, 2001,
among the Borrower, the Joint Lead Arrangers, DB and Citibank.
"Fees" shall mean the Facility Fee, the Utilization Fee and
the Administrative Fees.
"Financial Officer" of any corporation shall mean the chief
financial officer, principal accounting officer, Treasurer or Assistant
Treasurer of such corporation.
"Fixed Rate Borrowing" shall mean a Borrowing comprised of
Fixed Rate Loans.
"Fixed Rate Loan" shall mean any Competitive Loan bearing
interest at a fixed percentage rate per annum (expressed in the form of
a decimal to no more than four decimal places) specified by the Lender
making such Loan in its Competitive Bid.
"Funded Debt" shall mean any Indebtedness maturing by its
terms more than one year from the date of the determination thereof,
including any Indebtedness renewable or extendible at the option of the
obligor to a date later than one year from the date of the
determination thereof.
{PAGE}
8
"GAAP" shall mean generally accepted accounting principles,
applied on a consistent basis.
"Governmental Authority" shall mean any Federal, state, local
or foreign court or governmental agency, authority, instrumentality or
regulatory body.
"Indebtedness" of any Person shall mean all indebtedness
representing money borrowed which is created, assumed, incurred or
guaranteed in any manner by such Person or for which such Person is
responsible or liable (whether by agreement to purchase indebtedness
of, or to supply funds to or invest in, others or otherwise), excluding
indebtedness of AT&T Latin America and Monetized Debt; provided that
for purposes of determining compliance with Section 5.08, (a)
Indebtedness in the form of guarantees entered into by the Borrower or
its Subsidiaries or for which the Borrower or any of its Subsidiaries
is responsible or liable shall exclude (i) keep-well and other similar
agreements to advance or supply funds (x) for the purchase or payment
of any primary obligation of any other Person (the "primary obligor")
or (y) to maintain working capital or equity capital of the primary
obligor or otherwise maintain the net worth or solvency of the primary
obligor and (ii) guarantees of obligations for which cross-guarantees
or cross-indemnifications in favor of the Borrower or such Subsidiary
from AT&T Wireless Services, Inc., Liberty Media Corporation, AT&T
Corp., AT&T Broadband or AT&T Business exist and (b) Indebtedness shall
be calculated net of cash and cash equivalents held by the Borrower and
its Consolidated Subsidiaries on the date of determination (other than
cash and cash equivalents held by AT&T Latin America).
"Intangible Assets" shall mean the value (net of any
applicable reserves), as shown on or reflected in the most recently
prepared consolidated balance sheet of the Borrower and its
Consolidated Subsidiaries as of the end of the most recent fiscal
quarter of the Borrower of: (i) all trade names, trademarks, licenses,
patents, copyrights and goodwill; (ii) organizational costs; and (iii)
deferred charges (other than prepaid items such as insurance, taxes,
interest, commissions, rents and similar items and tangible assets
being amortized); but in no event shall the term "Intangible Assets"
include product development costs.
"Interest Payment Date" shall mean, with respect to any Loan,
the last day of the Interest Period applicable thereto and, in the case
of a Eurodollar Loan with an Interest Period of more than three months'
duration or a Fixed Rate Loan with an Interest Period of more than 90
days' duration, each day that would have been an Interest Payment Date
for such Loan had successive Interest Periods of three months' duration
or 90 days' duration, as the case may be, been applicable to such Loan
and, in addition, the date of any conversion of such Loan to a Loan of
a different Type.
"Interest Period" shall mean (a) as to any Eurodollar
Borrowing, the period commencing on the date of such Borrowing or on
the last day of the immediately preceding Interest Period applicable to
such Borrowing, as the case may be, and ending on the numerically
corresponding day (or, if there is no numerically corresponding day, on
the last day) in the calendar month that is 1, 2, 3 or 6 months
thereafter, as the Borrower may elect, (b) as to any ABR Borrowing, the
period commencing on the date of
{PAGE}
9
such Borrowing or on the last day of the immediately preceding Interest
Period applicable to such Borrowing, as the case may be, and ending on
the earliest of (i) the next succeeding March 31, June 30, September 30
or December 31, (ii) the Maturity Date, and (iii) the date such
Borrowing is converted to a Borrowing of a different Type in accordance
with Section 2.05 or repaid or prepaid in accordance with Section 2.07
or Section 2.12 and (c) as to any Fixed Rate Borrowing, the period
commencing on the date of such Borrowing and ending on the date
specified in the Competitive Bids in which the offer to make the Fixed
Rate Loans comprising such Borrowing were extended, which shall not be
earlier than seven days after the date of such Borrowing or later than
360 days after the date of such Borrowing; provided, however, that if
any Interest Period would end on a day other than a Business Day, such
Interest Period shall be extended to the next succeeding Business Day
unless, in the case of Eurodollar Loans only, such next succeeding
Business Day would fall in the next calendar month, in which case such
Interest Period shall end on the next preceding Business Day. Interest
shall accrue from and including the first day of an Interest Period to
but excluding the last day of such Interest Period.
"Joint Lead Arrangers" shall have the meaning specified in the
recital of parties to this Agreement.
"LIBO Rate" shall mean, with respect to each Interest Period,
a rate of interest determined on the basis of at least two offered
rates for deposits in United States dollars for a period equal to such
Interest Period commencing on the first day of such Interest Period
appearing on the Reuters Screen LIBO Page as of 11:00 a.m. (London
time) on the day that is two Business Days prior to the first day of
such Interest Period. If at least two such offered rates appear on the
Reuters Screen LIBO Page, the rate with respect to each Interest Period
will be the arithmetic average (rounded upwards to the next 1/16th of
1%) of such offered rates. If fewer than two offered rates appear,
"LIBO Rate" in respect of any Interest Period will be determined on the
basis of the rates at which deposits in United States dollars are
offered by the Paying Agent at approximately 11:00 a.m. (London time)
on the day that is two Business Days preceding the first day of such
Interest Period to prime banks in the London interbank market for a
period equal to such Interest Period commencing on the first day of
such Interest Period.
"Lien" means any mortgage, pledge, security interest, lien,
charge or other encumbrance, but shall not include any of the foregoing
types of encumbrances that are incidental to the conduct of the
business of the Borrower or any Restricted Subsidiary or the ownership
of the property and assets of any of them and that were not incurred in
connection with the incurrence of any Indebtedness. Such incidental
encumbrances that are to be excluded from the term "Lien" include,
without limitation: (i) pledges or deposits made to secure obligations
of the Borrower or Restricted Subsidiary under workmen's compensation
laws or similar legislation; (ii) liens imposed by law, such as
materialmen's, mechanics', carriers', workmen's, vendors', repairmen's,
or other like liens incurred in the ordinary course of business; (iii)
governmental (Federal, state or municipal) liens arising out of
contracts for the purchase of products of the Borrower or a Restricted
Subsidiary, and deposits or pledges to obtain the release of any of the
foregoing liens; (iv) liens created by or resulting from any litigation
or legal proceeding
{PAGE}
10
that is currently being contested in good faith by appropriate
proceedings; (v) leases made or existing on Principal Property entered
into in the ordinary course of business by the Borrower or a Restricted
Subsidiary; (vi) landlords' liens under leases of Principal Property to
which the Borrower or a Restricted Subsidiary is a party; (vii) zoning
restrictions, easements, licenses or restrictions on the use of
Principal Property or minor irregularities in the title thereto; (viii)
deposits in connection with bids, tenders, contracts (other than for
the payment of money) to which the Borrower or any Restricted
Subsidiary is a party; (ix) deposits to secure public or statutory
obligations of the Borrower or any Restricted Subsidiary; (x) deposits
in connection with obtaining or maintaining self-insurance or to obtain
the benefits of any law, regulation or arrangement pertaining to
unemployment insurance, old age pensions, social security or similar
matters; (xi) deposits of cash or obligations of the United States of
America to secure surety, appeal or customs bonds to which the Borrower
or any Restricted Subsidiary is a party; and (xii) liens for taxes or
assessments or governmental charges or levies not yet due or
delinquent, or which can thereafter be paid without penalty, or which
are being contested in good faith by appropriate proceedings.
"Loan" shall mean a Competitive Loan or a Standby Loan,
whether made as a Eurodollar Loan, an ABR Loan or a Fixed Rate Loan, as
permitted hereby.
"Long-Term Debt" shall mean, at any time, any publicly-held
senior unsecured debt obligations outstanding at such time with a
maturity more than one year after the date of any determination
hereunder.
"Long-Term Senior Debt" shall have the meaning specified in
the definition of "Public Debt Ratings".
"Margin" shall mean, as to any Eurodollar Competitive Loan,
the margin (expressed as a percentage rate per annum in the form of a
decimal to no more than four decimal places) to be added to or
subtracted from the LIBO Rate in order to determine the interest rate
applicable to such Loan, as specified in the Competitive Bid relating
to such Loan.
"Margin Regulations" shall mean Regulations T, U and X of the
Board as from time to time in effect, and all official rulings and
interpretations thereunder or thereof.
"Margin Stock" shall have the meaning given such term under
Regulation U of the Board.
"Material Adverse Effect" shall mean a materially adverse
effect on the business, assets, operations or condition, financial or
otherwise, of the Borrower and its Subsidiaries taken as a whole (it
being understood that neither the proposed Separation Transactions nor
any event, condition or result reflected in reports or financial
statements filed with the SEC prior to November 13, 2001, shall be
deemed to give rise to a Material Adverse Effect).
"Maturity Date" shall mean December 13, 2002.
{PAGE}
11
"Monetized Debt" shall mean Indebtedness of the Borrower or a
non-operating Subsidiary of the Borrower secured by capital stock of
Persons not directly or indirectly controlled by the Borrower
(collectively, the "Available Stock"), so long as the Borrower or such
non-operating Subsidiary has at all times sufficient Available Stock so
that upon maturity or exchange prior to maturity it may satisfy
substantially all of the obligations arising under such Indebtedness
(other than obligations to pay cash coupon amounts on such
Indebtedness) solely by the delivery of Available Stock.
"Moody's" shall mean Moody's Investors Service, Inc. or any
successor rating agency.
"Operational EBITDA" shall mean, for any period operating
income (or operating loss) of the Borrower and its Consolidated
Subsidiaries, excluding the operating income (or operating loss) of
AT&T Latin America and At Home Corporation plus, to the extent deducted
in determining such operating income (or operating loss), the sum of
(a) depreciation expense, (b) amortization expense, (c) restructuring
and other charges and (d) asset impairment charges. If the Borrower
acquires (whether by purchase, merger, consolidation or otherwise) all
or substantially all of the assets or property of any other Person, or
engages in any asset sale permitted by Section 5.05, during any period
in respect of which Operational EBITDA is to be determined hereunder,
such Operational EBITDA will be determined on a pro forma basis as if
such acquisition or such asset sale occurred on the first day of the
relevant period if the Operational EBITDA attributable to such
acquisition or assets sold represents more than 10% of the Borrower's
Operational EBITDA calculated immediately prior to giving effect to
such acquisition or such asset sale.
"Paying Agent" shall have the meaning specified in the recital
of parties to this Agreement.
"Person" or "person" shall mean any natural person,
corporation, business trust, joint venture, association, company,
partnership or government, or any agency or political subdivision
thereof.
"Principal Property" of the Borrower shall mean any land, land
improvements, building and associated factory, laboratory office and
switching equipment (excluding all products marketed by the Borrower or
any Subsidiary) constituting a manufacturing facility, development
facility, warehouse facility, service facility, office facility or
operating facility (including any portion thereof), which facility (a)
is owned by or leased to the Borrower or any Restricted Subsidiary, (b)
is located within the United States and (c) has an acquisition cost
plus capitalized improvements in excess of 0.25% of Consolidated Net
Tangible Assets of the Borrower as of the date of such determination,
other than (i) any such facility, or portion thereof, which has been
financed by obligations issued by or on behalf of a State, a Territory
or a possession of the United States, or any political subdivision of
any of the foregoing, or the District of Columbia, the interest on
which is excludable from gross income of the holders thereof (other
than a "substantial user" of such facility or a "related person" as
those terms are used in Section 103 of the Code) pursuant to the
provisions of Section 103 of the Code (or any similar provisions
{PAGE}
12
hereafter enacted) as in effect at the time of issuance of such
obligations, (ii) any such facility which the Borrower's Board of
Directors may by resolution declare is not of material importance to
the Borrower and the Restricted Subsidiaries taken as a whole and (iii)
any such facility, or portion thereof, owned or leased jointly or in
common with one or more persons other than the Borrower and any
Subsidiary of the Borrower and in which the interest of the Borrower
and all Subsidiaries of the Borrower does not exceed 50%.
"Public Debt Ratings" means, as of any date, the lowest rating
(other than any rating based on, or incorporating an expectation of,
the prospective occurrence and consequences of a Separation Transaction
in which AT&T Broadband is separated from AT&T Business) that has been
most recently announced by either S&P or Moody's, as the case may be,
for any class of non-credit enhanced long-term senior unsecured debt
(the "Long-Term Senior Debt") and commercial paper (the "Short-Term
Debt") issued by the Borrower; provided that (i) if the Borrower has
caused the credit facility evidenced by this Agreement to be rated by
S&P and Moody's, then such ratings shall be used in lieu of the ratings
applicable to Long-Term Senior Debt and Short-Term Debt of the Borrower
for all purposes hereunder, (ii) if the event referred to in the
preceding clause (i) has not occurred and AT&T Business has assumed the
obligations of Borrower hereunder then the Long-Term Senior Debt and
Short-Term Debt ratings of AT&T Business will be used in lieu of such
ratings of the Borrower and (iii) if the events referred to in the
preceding clauses (i) and (ii) have not occurred but the Borrower has
delivered to the Paying Agent a guaranty in substantially the form of
Exhibit E hereto (the "AT&T Business Guarantee"), pursuant to which
AT&T Business guarantees the obligations of the Borrower under this
Agreement, the ratings established by S&P and Moody's for Long-Term
Senior Debt of AT&T Business shall be used in lieu of the ratings
applicable to Long-Term Senior Debt of the Borrower for all purposes
hereunder and, if higher, the ratings established by S&P and Moody's
for the Short-Term Debt of AT&T Business shall be used in lieu of the
ratings applicable to Short-Term Debt of the Borrower for all purposes
hereunder, in each case, for such time as the AT&T Business Guarantee
remains in effect. For purposes of the foregoing, with respect to the
Borrower or AT&T Business, as the case may be, (a) if S&P or Moody's
shall have in effect a rating for only one but not both of the
Long-Term Senior Debt or the Short-Term Debt, the Applicable Margin and
the Applicable Facility Fee Percentage shall be the lowest level that
may be determined by reference to the available rating; (b) if only one
of S&P and Moody's shall have in effect Public Debt Ratings, the
Applicable Margin and the Applicable Facility Fee Percentage shall be
determined by reference to the available rating; (c) if neither S&P nor
Moody's shall have in effect Public Debt Ratings for either of the
Long-Term Senior Debt or the Short-Term Debt, the Applicable Margin and
the Applicable Facility Fee Percentage will be set in accordance with
Level 6 under the definition of "Applicable Margin" or "Applicable
Facility Fee Percentage", as the case may be; (d) if any rating
established by S&P or Moody's shall be changed, such change shall be
effective as of the date on which such change is first announced
publicly by the rating agency making such change; and (e) if S&P or
Moody's shall change the basis on which ratings are established, each
reference to the Public Debt Ratings announced by S&P or Moody's, as
the case may be, shall refer to the then equivalent rating by S&P or
Moody's, as the case may be.
{PAGE}
13
"Register" shall have the meaning given such term in Section
8.04(d).
"Regulation D" shall mean Regulation D of the Board as from
time to time in effect and all official rulings and interpretations
thereunder or thereof.
"Required Lenders" shall mean, at any time, Lenders having
Commitments representing at least 51% of the Total Commitment or, if
the Commitments shall have been terminated, or for purposes of
acceleration pursuant to clause (ii) of Article VI, Lenders holding
Loans representing at least 51% of the aggregate principal amount of
the Loans outstanding.
"Responsible Officer" of any corporation shall mean any
executive officer or Financial Officer of such corporation and any
other officer or similar official thereof responsible for the
administration of the obligations of such corporation in respect of
this Agreement.
"Restricted Securities" shall mean any shares of capital stock
or Indebtedness of any Restricted Subsidiary (but shall not include any
Margin Stock).
"Restricted Subsidiary" shall mean (a) any Subsidiary of the
Borrower (i) which has substantially all of its property within the
United States of America, (ii) which owns or is a lessee of any
Principal Property, and (iii) in which the investment of the Borrower
and all other Subsidiaries of the Borrower exceeds 0.25% of
Consolidated Net Tangible Assets of the Borrower as of the date of such
determination; provided, however, that the term "Restricted Subsidiary"
shall not include (A) any Subsidiary of the Borrower (x) primarily
engaged in the business of purchasing, holding, collecting, servicing
or otherwise dealing in and with installment sales contracts, leases,
trust receipts, mortgages, commercial paper or other financing
instruments and any collateral or agreements relating thereto,
including in the business, individually or through partnerships, of
financing (whether through long- or short-term borrowings, pledges,
discounts or otherwise) the sales, leasing or other operations of the
Borrower and the Subsidiaries or any of them, or (y) engaged in the
business of financing the assets and operations of third parties;
318050
|
AT&T Wireless
As referenced in this 364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]:
AT&T Wireless Services, – primary
obligor and (ii) guarantees of obligations for which cross-guarantees
or cross-indemnifications in favor of the Borrower or such Subsidiary
from AT&T Wireless Services, Inc., Liberty Media Corporation, AT&T
Corp., AT&T Broadband or AT&T Business exist and (b) Indebtedness shall
be calculated net
_____________
dt 606044
;
AT&T
As referenced in this 364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]:
AT&T CORP – i)38
EXECUTION COPY
================================================================================
AMENDED AND RESTATED 364-DAY
COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
Dated as of December 14, 2001
among
AT&T CORP .,
THE LENDERS PARTY HERETO,
CITIBANK, N.A., CREDIT SUISSE FIRST BOSTON,
DEUTSCHE BANK AG NEW YORK BRANCH and
GOLDMAN
SACHS CREDIT PARTNERS
_____________
AT&T Corp – Exhibit A-5 Form of Standby Borrowing Request
Exhibit B Form of Assignment and Acceptance
Exhibit C Form of Opinion of Counsel for AT&T Corp .
Exhibit D Form of Note
Exhibit E Form of AT&T Business Guaranty
Schedule 2.01 Commitments
{PAGE}
AMENDED AND RESTATED 364-
_____________
AT&T CORP – Commitments
{PAGE}
AMENDED AND RESTATED 364-DAY COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT (the "Agreement") dated as of December [__], 2001,
among AT&T CORP ., a New York corporation (the "Borrower"), the lenders listed in
Schedule 2.01 (the "Lenders"), CITIBANK, N.A. ("Citibank"), CREDIT SUISSE FIRST
_____________
AT&T
Corp – which cross-guarantees
or cross-indemnifications in favor of the Borrower or such Subsidiary
from AT&T Wireless Services, Inc., Liberty Media Corporation, AT&T
Corp ., AT&T Broadband or AT&T Business exist and (b) Indebtedness shall
be calculated net of cash and cash equivalents held by
_____________
AT&T Corp – by telex, telecopy, graphic scanning or other telegraphic communications
equipment of the sending party, as follows:
if to the Borrower, to it at AT&T Corp ., 295 North Maple Avenue,
Basking Ridge, New Jersey 07920, Attention of Patrick Moletteri, Senior
Treasury Manager (Facsimile No. 908-630-1965) with
_____________
dt 629977
;
AT&T LatAm
As referenced in this 364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]:
AT&T Latin America Corp – involving AT&T Broadband.
"AT&T Business Spinoff" has the meaning set forth in Section
5.05(c).
"AT&T Latin America" means AT&T Latin America Corp ., a
Delaware corporation.
"At Home Corporation" means At Home Corporation, a Delaware
corporation.
"Attributable Debt" shall mean, as of the date of
_____________
dt 656655
;
|
Citibank
As referenced in this 364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]:
CITIBANK, N.A. – 364-DAY
COMPETITIVE ADVANCE AND REVOLVING
CREDIT FACILITY AGREEMENT
Dated as of December 14, 2001
among
AT&T CORP.,
THE LENDERS PARTY HERETO,
CITIBANK, N.A. , CREDIT SUISSE FIRST BOSTON,
DEUTSCHE BANK AG NEW YORK BRANCH and
GOLDMAN
SACHS CREDIT PARTNERS L.P.,
as Administrative Agents,
and
CITIBANK,
_____________
CITIBANK, N.A. – N.A., CREDIT SUISSE FIRST BOSTON,
DEUTSCHE BANK AG NEW YORK BRANCH and
GOLDMAN
SACHS CREDIT PARTNERS L.P.,
as Administrative Agents,
and
CITIBANK, N.A. ,
as Paying Agent,
with
SALOMON SMITH BARNEY INC., CREDIT SUISSE
FIRST BOSTON, DEUTSCHE BANC
ALEX. BROWN INC. and GOLDMAN SACHS
CREDIT PARTNERS
_____________
CITIBANK, N.A. – of December [__], 2001,
among AT&T CORP., a New York corporation (the "Borrower"), the lenders listed in
Schedule 2.01 (the "Lenders"), CITIBANK, N.A. ("Citibank"), CREDIT SUISSE FIRST
BOSTON ("CSFB"), DEUTSCHE BANK AG NEW YORK BRANCH ("DB") and GOLDMAN SACHS
CREDIT PARTNERS L.P. ("GSCP"), as
_____________
Citibank, N.A. – waived by the Borrower, anything
contained herein to the contrary notwithstanding.
THE AGENTS
In order to expedite the transactions contemplated by this Agreement,
Citibank, N.A. is hereby appointed to act as Paying Agent on behalf of the
Lenders and Citibank, N.A., Credit Suisse First Boston, Deutsche
_____________
Citibank, N.A. – the transactions contemplated by this Agreement,
Citibank, N.A. is hereby appointed to act as Paying Agent on behalf of the
Lenders and Citibank, N.A. , Credit Suisse First Boston, Deutsche Bank AG New
York Branch and Goldman Sachs Credit Partners L.P. are hereby appointed to act
_____________
dt 638628
;
McGraw-Hill Companies
As referenced in this 364-Day Competitive Advance and Revolving Credit Facility Agreement [Amended and Restated]:
McGraw-Hill Companies, Inc – Accounting Standards No. 133 ("Accounting for Derivative Instruments
and Hedging Activities").
"S&P" means Standard & Poor's Ratings Services, a division of
The McGraw-Hill Companies, Inc . or any successor rating agency.
"Short-Term Debt" shall have the meaning assigned to such term
in the definition of Public Debt
_____________
dt 627689
;
More... |
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Full Doc
| 2003 |
Adjustment Plan
Adjustment Plan (1K)
Doc #269692: Click preview link for longer preview.
269692
|
AT&T Wireless
As referenced in this Adjustment Plan:
AT&T WIRELESS SERVICES, – DOCUMENT}
{TYPE}EX-10.18
{SEQUENCE}8
{FILENAME}v87986exv10w18.txt
{DESCRIPTION}EXHIBIT 10.18
{TEXT}
{PAGE}
EXHIBIT 10.18
AMENDMENT NO. 1
TO AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
The second paragraph of Section 13 of the AT&T Wireless Services, Inc.
Adjustment Plan shall be amended in
_____________
AT&T Wireless Services, – PAGE}
EXHIBIT 10.18
AMENDMENT NO. 1
TO AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
The second paragraph of Section 13 of the AT&T Wireless Services, Inc.
Adjustment Plan shall be amended in its entirety to read as follows:
The Board or the Committee may amend, alter, suspend,
_____________
dt 179754
| |
Preview
Full Doc
| 2003 |
Adjustment Plan [Amendment No. 2]
Adjustment Plan [Amendment No. 2] (2K)
Doc #269693: Click preview link for longer preview.
AMENDMENT NO. 2
TO
AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
AMENDMENT OF SECTION 4(a)
The first sentence of Section 4(a) of the AT&T Wireless Services, Inc.
Adjustment Plan (the "Plan") is hereby amended to add the words "under the Plan"
in the proviso as follows:
provided, that if any Shares subject to an Award held by a
Transferred Individual (as that term is defined in the Employee
Benefits Agreement) are forfeited or if any Award held by a
Transferred Individual which is based on Shares is settled for cash,
or expired or other is terminated without issuance of such Shares
under the Plan, the Shares subject to such Award shall, to the
extent of such cash settlement, forfeiture or termination, again be
available for Awards under the Plan.
AMENDMENT OF SECTION 14(i)
Section 14(i) of the Plan is hereby amended and restated in its entirety
to read as follows:
269693
|
AT&T Wireless
As referenced in this Adjustment Plan [Amendment No. 2]:
AT&T WIRELESS SERVICES, – DOCUMENT}
{TYPE}EX-10.19
{SEQUENCE}9
{FILENAME}v87986exv10w19.txt
{DESCRIPTION}EXHIBIT 10.19
{TEXT}
{PAGE}
EXHIBIT 10.19
AMENDMENT NO. 2
TO
AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
AMENDMENT OF SECTION 4(a)
The first sentence of Section 4(a) of the AT&T Wireless Services, Inc.
_____________
AT&T Wireless Services, – 2
TO
AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
AMENDMENT OF SECTION 4(a)
The first sentence of Section 4(a) of the AT&T Wireless Services, Inc.
Adjustment Plan (the "Plan") is hereby amended to add the words "under the Plan"
in the proviso as follows:
provided, that
_____________
dt 179755
| |
Preview
Full Doc
| 2001 |
Adjustment Plan
Adjustment Plan (51K)
Doc #269807: Click preview link for longer preview.
AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
SECTION 1. PURPOSE. The purpose of the AT&T Wireless Services, Inc.
Adjustment Plan (the "Plan") is to permit selected Employees and Non-Employee
Directors of AT&T Corp. ("AT&T") and its Affiliates and of AT&T Wireless
Services, Inc. (the "Company") and its Affiliates to retain and preserve, in
connection with the Distribution, the portion represented by AT&T Wireless Group
of the value of the equity-based incentive compensation granted to them pursuant
to any AT&T Long Term Incentive Plan (as such term is defined in the Employee
Benefits Agreement); specifically (a) to grant Options to purchase the Company's
common stock, as part of and in connection with the adjustment of options
granted under any AT&T Long Term Incentive Plan in connection with the
Distribution and resulting in two separately exercisable options, one to
purchase the common stock (an "Adjusted Option") and one to purchase AT&T common
stock, par value $1.00 per share, (b) to grant Options to purchase the Company's
common stock, as a result of the conversion of certain options to purchase
shares of AT&T Wireless Group common stock, par value $1.00 per share (the
"Converted Options"); (c) to grant other Awards pursuant to the adjustment of
awards granted under any AT&T Long Term Incentive Plan ("Adjusted Awards")
pursuant to terms of the Employee Benefits Agreement; (d) to grant Options or
other Awards after the Distribution to holders of Adjusted Options, Converted
Options or other Awards (or of other options or awards granted in respect
thereof in accordance with the Plan) in exchange for new Options or other Awards
granted pursuant to Section 4(a) or upon the adjustment of outstanding Options
or other Awards pursuant to Section 4(c); and (e) the administration of the
Adjusted Options, Converted Options and other Awards granted pursuant to the
Employee Benefits Agreement (and any other Options or Awards granted in respect
thereof in accordance with the Plan).
SECTION 2. DEFINITIONS. As used in the Plan, the following terms shall have
the meanings set forth below:
(a) "Affiliate" shall mean (i) any Person that directly, or through one
or more intermediaries, controls, or is controlled by, or is under common
control with, the Company or AT&T, as the case may be, or (ii) any entity in
which the Company or AT&T, as the case may be, has a significant equity
interest, as determined by the Committee.
(b) "AT&T Wireless Group" shall mean the businesses, assets and
liabilities the financial performance and economic value of which are intended
to be reflected by the AT&T Wireless Group common stock, par value $1.00 per
share, of AT&T prior to the Distribution.
(c) "Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock Award, Performance Share, Performance Unit, dividend equivalent, Other
Stock Unit Award
{PAGE} 2
or any other right, interest or option relating to Shares or other property
granted pursuant to the provisions of the Plan.
(d) "Award Agreement" shall mean any written agreement, contract or
other instrument or document evidencing any Award granted by the Committee
hereunder, which may, but need not, be executed or acknowledged by both the
Company and the Participant.
(e) "Board" shall mean the Board of Directors of the Company.
(f) "Change in Control" shall mean the happening of any of the following
events;
(i) an acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (an "Entity") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (A) the then outstanding Shares (the
"Outstanding Company Common Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"); excluding,
however, the following: (1) any acquisition directly from the Company, other
than an acquisition by virtue of the exercise of a conversion privilege unless
the security being so converted was itself acquired directly from the Company,
(2) any acquisition by the Company, (3) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (4) any acquisition by any corporation
pursuant to a transaction that complies with clauses (A), (B) and (C) of Section
2(f)(iii);
(ii) a change in the composition of the Board as constituted
immediately following the consummation of the Distribution (the
"Post-Distribution Board Date") such that the individuals who, as of the
Post-Distribution Board Date, constitute the Board (such Board shall be
hereinafter referred to as the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that for
purposes of this definition, any individual who becomes a member of the Board
subsequent to the Post-Distribution Board Date, whose election, or nomination
for election, by the Company's stockholders was approved by a vote of at least a
majority of those individuals who are members of the Board and who were also
members of the Incumbent Board (or deemed to be such pursuant to this proviso
shall be considered as though such individual were a member of the Incumbent
Board; and provided further, however, that any such individual whose initial
assumption of office occurs as a result of or in connection with either an
actual or threatened solicitation with respect to the election of directors (as
such terms are used in Rule 14a-12(c) of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of an Entity other than the Board shall not be so considered as
a member of the Incumbent Board;
(iii) the consummation of a merger, reorganization or consolidation
or sale or other disposition of all or substantially all of the assets of the
Company (each, a "Corporate Transaction"), excluding however, any Corporate
Transaction pursuant to which (A) all or
269807
|
AT&T Wireless
As referenced in this Adjustment Plan:
AT&T WIRELESS SERVICES, – {DOCUMENT}
{TYPE}EX-99.3
{SEQUENCE}7
{FILENAME}v73758orex99-3.txt
{DESCRIPTION}EXHIBIT 99.3
{TEXT}
{PAGE} 1
EXHIBIT 99.3
AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
SECTION 1. PURPOSE. The purpose of the AT&T Wireless Services, Inc.
Adjustment Plan (the "Plan") is to permit
_____________
AT&T Wireless Services, – EXHIBIT 99.3
{TEXT}
{PAGE} 1
EXHIBIT 99.3
AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
SECTION 1. PURPOSE. The purpose of the AT&T Wireless Services, Inc.
Adjustment Plan (the "Plan") is to permit selected Employees and Non-Employee
Directors of AT&T Corp. ("AT&T") and its
_____________
AT&T Wireless
Services, – Plan (the "Plan") is to permit selected Employees and Non-Employee
Directors of AT&T Corp. ("AT&T") and its Affiliates and of AT&T Wireless
Services, Inc. (the "Company") and its Affiliates to retain and preserve, in
connection with the Distribution, the portion represented by AT&T Wireless
_____________
AT&T Wireless Services, – and an "outside director" within the meaning
of Section 162(m) of the Code, or any successor provision thereto.
(j) "Company" shall mean AT&T Wireless Services, Inc., a Delaware
corporation.
(k) "Covered Employee" shall mean a "covered employee" within the
meaning of Section 162(m)(3) of the
_____________
dt 179857
;
|
AT&T
As referenced in this Adjustment Plan:
AT&T Corp – The purpose of the AT&T Wireless Services, Inc.
Adjustment Plan (the "Plan") is to permit selected Employees and Non-Employee
Directors of AT&T Corp . ("AT&T") and its Affiliates and of AT&T Wireless
Services, Inc. (the "Company") and its Affiliates to retain and preserve, in
_____________
dt 177657
|
Preview
Full Doc
| 2001 |
Adjustment Plan
Adjustment Plan (51K)
Doc #269853: Click preview link for longer preview.
AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
SECTION 1. PURPOSE. The purpose of the AT&T Wireless Services, Inc. 2001
Adjustment Plan (the "Plan") is to permit selected Employees and Non-Employee
Directors of AT&T Corp. ("AT&T") and its Affiliates and of AT&T Wireless
Services, Inc. (the "Company") and its Affiliates to retain and preserve, in
connection with the Distribution, the portion represented by AT&T Wireless Group
of the value of the equity-based incentive compensation granted to them pursuant
to any AT&T Long Term Incentive Plan (as such term is defined in the Employee
Benefits Agreement); specifically (i) to grant Options to purchase the Company's
Common Stock, as part of and in connection with the adjustment of options
granted under any AT&T Long Term Incentive Plan in connection with the
Distribution and resulting in two separately exercisable options, one to
purchase the Common Stock (an "Adjusted Option") and one to purchase AT&T common
stock, par value $1.00 per share, (ii) to grant Options to purchase the
Company's Common Stock, as a result of the conversion of certain options to
purchase shares of AT&T Wireless Group common stock, par value $1.00 per share
(the "Converted Options"); (iii) to grant other Awards pursuant to the
adjustment of awards granted under any AT&T Long Term Incentive Plan ("Adjusted
Awards") pursuant to terms of the Employee Benefits Agreement; (iv) to grant
Options or other Awards after the Distribution to holders of Adjusted Options,
Converted Options, or other Awards (or of other options or awards granted in
respect thereof in accordance with the Plan) in exchange for new Options or
other Awards granted pursuant to Section 4(a) or upon the adjustment of
outstanding Options or other Awards pursuant to Section 4(c); and (iv) the
administration of the Adjusted Options, Converted Options and other Awards
granted pursuant to the Employee Benefits Agreement (and any other Options or
Awards granted in respect thereof in accordance with the Plan).
SECTION 2. DEFINITIONS. As used in the Plan, the following terms shall
have the meanings set forth below:
(a) "Affiliate" shall mean (i) any Person that directly, or through one or
more intermediaries, controls, or is controlled by, or is under common control
with, the Company or AT&T., as the case may be, or (ii) any entity in which the
Company or AT&T, as the case may be, has a significant equity interest, as
determined by the Committee.
(b) "AT&T Controlled Group" shall mean AT&T's controlled group of
corporations as defined in Section 1563 of the Code.
(c) "Award" shall mean any Option, Stock Appreciation Right, Restricted
Stock Award, Performance Share, Performance Unit, dividend equivalent, Other
Stock Unit Award, or any other right, interest, or option relating to Shares or
other property granted pursuant to the provisions of the Plan.
{PAGE} 2
(d) "Award Agreement" shall mean any written agreement, contract, or other
instrument or document evidencing any Award granted by the Committee hereunder,
which may, but need not, be executed or acknowledged by both the Company and the
Participant.
(e) "Board" shall mean the Board of Directors of the Company.
(f) "Change in Control" shall mean the happening of any of the following
events;
(i) An acquisition by any individual, entity or group (within the
meaning of Section 13(d)(3) or 14(d)(2) of the Exchange Act) (an "Entity") of
beneficial ownership (within the meaning of Rule 13d-3 promulgated under the
Exchange Act) of 20% or more of either (A) the then outstanding Shares (the
"Outstanding Company Common Stock") or (B) the combined voting power of the then
outstanding voting securities of the Company entitled to vote generally in the
election of directors (the "Outstanding Company Voting Securities"); excluding,
however, the following: (1) any acquisition directly from the Company, other
than an acquisition by virtue of the exercise of a conversion privilege unless
the security being so converted was itself acquired directly from the Company,
(2) any acquisition by the Company, (3) any acquisition by any employee benefit
plan (or related trust) sponsored or maintained by the Company or any
corporation controlled by the Company, or (4) any acquisition by any corporation
pursuant to a transaction that complies with clauses (A), (B) and (C) of Section
2(e)(iii);
(ii) A change in the composition of the Board as constituted
immediately following the consummation of the Distribution (the
"Post-Distribution Board Date") such that the individuals who, as of the
Post-Distribution Board Date, constitute the Board (such Board shall be
hereinafter revered to as the "Incumbent Board") cease for any reason to
constitute at least a majority of the Board; provided, however, that for
purposes of this definition, any individual who becomes a member of the Board
subsequent to the Post-Distribution Board Date, whose election, or nomination
for election, by the Company's stockholders was approved by a vote of at least a
majority of those individuals who are members of the Board and who were also
members of the Incumbent Board (or deemed to be such pursuant to this proviso
shall be considered as though such individual were a member of the Incumbent
Board; and provided, further however, that any such individual whose initial
assumption of office occurs as a result of or in connection with either an
actual or threatened solicitation with respect to the election of directors (as
such terms are used in Rule 14a-12(c) of Regulation 14A promulgated under the
Exchange Act) or other actual or threatened solicitation of proxies or consents
by or on behalf of an Entity other than the Board shall not be so considered as
a member of the Incumbent Board;
(iii) The consummation of a merger, reorganization or consolidation
or sale or other disposition of all or substantially all of the assets of the
Company (each, a "Corporate Transaction"); excluding however, any Corporate
Transaction pursuant to which (A) all or substantially all of the individuals
and entities who are the beneficial owners, respectively, of the Outstanding
Company Common Stock and Outstanding Company Voting Securities
269853
|
AT&T Wireless
As referenced in this Adjustment Plan:
}AT&T WIRELESS SERVICES – {DOCUMENT}
{TYPE}EX-10.15
{SEQUENCE}16
{FILENAME}y47396aex10-15.txt
{DESCRIPTION}AT&T WIRELESS SERVICES ADJUSTMENT PLAN
{TEXT}
{PAGE} 1
EXHIBIT 10.15
AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
SECTION 1. PURPOSE. The purpose of the AT&
_____________
AT&T WIRELESS SERVICES, – TYPE}EX-10.15
{SEQUENCE}16
{FILENAME}y47396aex10-15.txt
{DESCRIPTION}AT&T WIRELESS SERVICES ADJUSTMENT PLAN
{TEXT}
{PAGE} 1
EXHIBIT 10.15
AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
SECTION 1. PURPOSE. The purpose of the AT&T Wireless Services, Inc. 2001
Adjustment Plan (the "Plan") is to
_____________
AT&T Wireless Services, – SERVICES ADJUSTMENT PLAN
{TEXT}
{PAGE} 1
EXHIBIT 10.15
AT&T WIRELESS SERVICES, INC.
ADJUSTMENT PLAN
SECTION 1. PURPOSE. The purpose of the AT&T Wireless Services, Inc. 2001
Adjustment Plan (the "Plan") is to permit selected Employees and Non-Employee
Directors of AT&T Corp. ("AT&T") and
_____________
AT&T Wireless
Services, – Plan (the "Plan") is to permit selected Employees and Non-Employee
Directors of AT&T Corp. ("AT&T") and its Affiliates and of AT&T Wireless
Services, Inc. (the "Company") and its Affiliates to retain and preserve, in
connection with the Distribution, the portion represented by AT&T Wireless
_____________
AT&T Wireless Services, – and an "outside director" within the meaning of
Section 162(m) of the Code, or any successor provision thereto.
(j) "Company" shall mean AT&T Wireless Services, Inc., a Delaware
corporation.
(k) "Covered Employee" shall mean a "covered employee" within the meaning
of Section 162(m)(3) of the
_____________
dt 179903
;
|
AT&T
As referenced in this Adjustment Plan:
AT&T Corp – purpose of the AT&T Wireless Services, Inc. 2001
Adjustment Plan (the "Plan") is to permit selected Employees and Non-Employee
Directors of AT&T Corp . ("AT&T") and its Affiliates and of AT&T Wireless
Services, Inc. (the "Company") and its Affiliates to retain and preserve, in
_____________
dt 177682
|
Preview
Full Doc
| 2001 |
Agency and Referral Agreement
Agency and Referral Agreement (37K)
Doc #269847: Click preview link for longer preview.
AGENCY AND REFERRAL AGREEMENT
THIS AGENCY AND REFERRAL AGREEMENT (the "Agreement") is made this 5th day
of June, 2001, by and between AT&T WIRELESS SERVICES, INC., a Delaware
corporation with offices at 7277 -- 164th Avenue NE, Redmond, WA 98052, as
agent for its wireless operating affiliates (collectively "AWS") and AT&T
Corp., a New York corporation with offices at 295 North Maple Ave., Basking
Ridge, NJ 07920 ("AT&T").
RECITALS
A. AWS markets and sells wireless voice and data telecommunications
products, applications and services ("Service") to qualified customers in
various areas in the United States.
B. AT&T, among other things, will market various telecommunications
services to business customers.
C. In connection with the separation of AWS from AT&T, the parties to this
Agreement wish to establish a relationship under which AT&T, through its
Business Services division, will use its sales force for the referral of
business subscribers to AWS' Service, under the terms and conditions set forth
below.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual promises and covenants
provided herein, and other good and valuable consideration, the receipt of which
is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS.
1.1 AFFILIATE. "Affiliate" of a party means an entity which is controlled
by, controls or is under common control with the party.
1.2 CHANGE OF CONTROL. "Change of Control" shall have the meaning set
forth for it in the Separation and Distribution Agreement dated as of June 4,
2001, by and between AT&T Corp. and AT&T Wireless Services, Inc.
1.3 CONFIDENTIAL INFORMATION. "Confidential Information" has the meaning
set forth in Section 9 below.
1
{PAGE} 2
1.4 CPNI. "CPNI" means Customer Proprietary Network Information as defined
in the Telecommunications Act of 1996, and the rules promulgated thereunder.
1.5 DEFAULTING PARTY. "Defaulting Party" has the meaning set forth
in Section 6 below.
1.6 EFFECTIVE DATE. "Effective Date" means the date upon which the
separation of AWS (or the Affiliate of AWS which will serve as the vehicle for
holding all of AT&T's wireless assets) from AT&T is effective.
1.7 END USERS. "End Users" means those employees of a Subscriber who
receive Service from AWS under the account of a Subscriber, either directly
under the contract of the Subscriber or who purchase Service with personal
liability under an AWS-approved sponsorship program.
1.8 EQUIPMENT. "Equipment" means wireless terminal devices and related
equipment offered to Subscribers and End Users by AWS.
1.9 LARGE BUSINESS CUSTOMER. "Large Business Customer" means a corporate
or government entity who purchases a qualified large business program from AWS.
As of the date of this Agreement, the qualified large business programs include
Corporate Digital Advantage, Worldview, Wireless Office Service and Enterprise
Wireless Data. AWS may amend the qualified large business programs available
from time to time upon 90 days' prior written notice to AT&T.
1.10 MARKS. "Marks" means the service marks, trademarks, trade names,
brands, logos, taglines, and other identifying marks of a party.
1.11 MARK RULES. "Mark Rules" means the rules and procedures prescribed by
a party regarding the use of its Marks, as those rules and procedures may be
amended from time to time by such party.
1.12 NON-DEFAULTING PARTY. "Non-Defaulting Party" has the meaning set
forth in Section 6 below.
1.13 PROSPECTS. "Prospects" means prospective Large Business
Customers identified and agreed to by both parties.
1.14 SERVICE. "Service" has the meaning set forth in Recital A above.
1.15 SMALL BUSINESS CUSTOMER. "Small Business Customer" means a business
or government entity that has purchased Service from AWS under a small business
program, as may be defined by AWS from time to time.
2
{PAGE} 3
1.16 SUBSCRIBER. "Subscriber" means each Large or Small Business Customer
who purchases Service from AWS as a result of the efforts of AWS and AT&T as
described in this Agreement.
2. GENERAL RESPONSIBILITIES.
2.1 JOINT EFFORTS. Subject to compliance with all applicable laws, the
parties agree to use commercially reasonable efforts to cooperate in marketing
and promoting the Service to Prospects and to potential Small Business Customers
as set forth in this Agreement. Except as expressly agreed to by the parties in
writing, each party shall be responsible for the cost and expenses of conducting
its business and its share of any expenses of joint marketing activities.
2.2 PROSPECT IDENTIFICATION. AWS and AT&T will jointly identify Prospects
which will be the focus of the parties efforts with respect to potential Large
Business Customers under this Agreement. Each Prospect must qualify as a
Subscriber for AWS' Service.
2.3 AWS SUBSCRIBERS. AT&T acknowledges and agrees that Subscribers who
activate Service as a result of any activity undertaken pursuant to this
Agreement shall be customers of AWS with respect to the Service, Equipment and
related applications covered by the agreements between AWS and the Subscribers.
2.4 REGULAR REVIEWS. The parties will meet at intervals of no greater than
one year to review the operation of this Agreement and resolve any issues which
have arisen under this Agreement.
2.5 BUNDLES. In the event a party wishes to offer a bundled service where
the communications services of the other party are fully integrated into the
communications services offered to the customer and is not separately priced or
identified on the customer's bill (e.g. single bucket offers), the offering
party will give the other party a right to bid to participate in the bundled
offer. In the event that the parties work together to provide an integrated
bundled offer and such offer has been developed and launched commercially, each
party will participate in the integrated bundled offer under the terms agreed by
the parties with the other party on an exclusive basis for the earlier of one
year or the expiration of the availability of the bundle. At the end of that
period, either party may withdraw from the offer by providing the other party 90
days' prior written notice but must continue to provide the service and support
to existing customers of the integrated bundled offer for the life of the
customer contract or for one year after termination, whichever is longer.
3. AT&T RESPONSIBILITIES.
3.1 SALES ACTIVITIES. AT&T will act as a limited agent for AWS in
soliciting and referring qualified Subscribers to AWS Service. Except as set
forth explicitly in this Agreement, AT&T's agency will be nonexclusive.
269847
|
AT&T Wireless
As referenced in this Agency and Referral Agreement:
AT&T WIRELESS SERVICES, – 5
AGENCY AND REFERRAL AGREEMENT
THIS AGENCY AND REFERRAL AGREEMENT (the "Agreement") is made this 5th day
of June, 2001, by and between AT&T WIRELESS SERVICES, INC., a Delaware
corporation with offices at 7277 -- 164th Avenue NE, Redmond, WA 98052, as
agent for its wireless operating affiliates (collectively "
_____________
AT&T Wireless Services, – set
forth for it in the Separation and Distribution Agreement dated as of June 4,
2001, by and between AT&T Corp. and AT&T Wireless Services, Inc.
1.3 CONFIDENTIAL INFORMATION. "Confidential Information" has the meaning
set forth in Section 9 below.
1
{PAGE} 2
1.4 CPNI. "
_____________
AT&T Wireless Services, – ______________________________
______________________________
______________________________
______________________________
With a copy to:
______________________________
______________________________
______________________________
______________________________
12
{PAGE} 13
If to AWS:
(if delivered by overnight express)
AT&T Wireless Services, Inc.
7277 -- 164th Avenue NE
Redmond, WA 98052
Attn: Vice President - Marketing
(if delivered by regular mail)
AT&T Wireless Services, Inc.
_____________
AT&T Wireless Services, – overnight express)
AT&T Wireless Services, Inc.
7277 -- 164th Avenue NE
Redmond, WA 98052
Attn: Vice President - Marketing
(if delivered by regular mail)
AT&T Wireless Services, Inc.
P.O. Box 97061
Redmond, WA 98073-9761
Attn: Vice President - Marketing
With a copy to:
AT&T Wireless Services, Inc.
_____________
AT&T Wireless Services, – regular mail)
AT&T Wireless Services, Inc.
P.O. Box 97061
Redmond, WA 98073-9761
Attn: Vice President - Marketing
With a copy to:
AT&T Wireless Services, Inc.
Attn: Legal Department
at the addresses set forth above
15. ENTIRE AGREEMENT.
This Agreement represents the entire Agreement between the parties
_____________
dt 179897
;
|
AT&T
As referenced in this Agency and Referral Agreement:
AT&T
Corp – a Delaware
corporation with offices at 7277 -- 164th Avenue NE, Redmond, WA 98052, as
agent for its wireless operating affiliates (collectively "AWS") and AT&T
Corp ., a New York corporation with offices at 295 North Maple Ave., Basking
Ridge, NJ 07920 ("AT&T").
RECITALS
A. AWS markets and
_____________
AT&T Corp – shall have the meaning set
forth for it in the Separation and Distribution Agreement dated as of June 4,
2001, by and between AT&T Corp . and AT&T Wireless Services, Inc.
1.3 CONFIDENTIAL INFORMATION. "Confidential Information" has the meaning
set forth in Section 9 below.
1
{
_____________
AT&T CORP – confidential and proprietary
information of the other party.
14
{PAGE} 15
EXECUTED as of the day and year first above written.
AT&T: AT&T CORP ORATION
By: ______________________________________
Printed Name: _______________________________
Title: ______________________________________
AWS: AT&T WIRELESS SERVICES, INC.
By: ________________________________________
Printed Name: _______________________________
Title: ______________________________________
15
{/TEXT}
{/
_____________
dt 177677
|
Preview
Full Doc
| 2004 |
Agreement and Plan of Merger
Agreement and Plan of Merger (229K)
Doc #269654: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX
of the Agreement and Plan of Merger,
SBC COMMUNICATIONS INC.
. . .
269654
|
AT&T Wireless
As referenced in this Agreement and Plan of Merger:
AT&T WIRELESS SERVICES, – 1
{SEQUENCE}3
{FILENAME}v96620exv99w1.txt
{DESCRIPTION}EXHIBIT 99.1
{TEXT}
{PAGE}
Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b),
_____________
AT&T Wireless Services, – AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this "Agreement"),
dated as of February 17, 2004, by and among AT&T Wireless Services, Inc., a
Delaware corporation (the "Company"), Cingular Wireless Corporation, a Delaware
corporation ("Cingular"), Cingular Wireless LLC, a Delaware limited liability
company ("Cingular
_____________
AT&T Wireless Services, – Jacobson LLP
One New York Plaza, New York, NY 10004
Attention: Gail L. Weinstein, Esq.
Fax: (212) 859-4000
if to the Company
AT&T Wireless Services, Inc.
7277 164th Avenue NE
Building 1
Redmond, WA 98052
Attention: Gregory P. Landis, General Counsel
Fax: (425) 580-8505
with a
_____________
AT&T WIRELESS SERVICES, – Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
AT&T WIRELESS SERVICES, INC.
By: /s/ John Zeglis
--------------------------------------
Name: John Zeglis
Title: CEO
CINGULAR WIRELESS CORPORATION
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
_____________
dt 179725
;
AT&T
As referenced in this Agreement and Plan of Merger:
AT&T Corp – 2000 (the "DoCoMo Warrant Agreement"), by and among the Company,
NTT DoCoMo, Inc., a corporation organized under the laws of Japan ("DoCoMo") and
AT&T Corp ., a New York corporation ("Former Parent") shall only entitle the
holder thereof to receive upon exercise thereof and payment of the exercise
_____________
dt 177626
;
|
Cingular
As referenced in this Agreement and Plan of Merger:
CINGULAR WIRELESS CORP – txt
{DESCRIPTION}EXHIBIT 99.1
{TEXT}
{PAGE}
Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORP ORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and
_____________
Cingular Wireless Corp – hereinafter called this "Agreement"),
dated as of February 17, 2004, by and among AT&T Wireless Services, Inc., a
Delaware corporation (the "Company"), Cingular Wireless Corp oration, a Delaware
corporation ("Cingular"), Cingular Wireless LLC, a Delaware limited liability
company ("Cingular Wireless"), and Links I Corporation, a Delaware corporation
and
_____________
Cingular Wireless Corp – personally or sent by registered or certified mail, postage prepaid, facsimile
or by overnight courier:
if to Cingular, Cingular Wireless or Merger Sub:
Cingular Wireless Corp oration
5565 Glenridge Connection
Suite 1100
Atlanta, Georgia 30342
Attention: Joaquin Carbonell, Esq.
Fax: (404) 249-4488
with copies to:
SBC Communications Inc.
_____________
CINGULAR WIRELESS CORP – parties hereto as of the date
first written above.
AT&T WIRELESS SERVICES, INC.
By: /s/ John Zeglis
--------------------------------------
Name: John Zeglis
Title: CEO
CINGULAR WIRELESS CORP ORATION
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
CINGULAR WIRELESS LLC
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
LINKS
_____________
dt 159940
;
Cingular
As referenced in this Agreement and Plan of Merger:
CINGULAR WIRELESS LLC
– 99.1
{TEXT}
{PAGE}
Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX
of
_____________
Cingular Wireless LLC, – February 17, 2004, by and among AT&T Wireless Services, Inc., a
Delaware corporation (the "Company"), Cingular Wireless Corporation, a Delaware
corporation ("Cingular"), Cingular Wireless LLC, a Delaware limited liability
company ("Cingular Wireless"), and Links I Corporation, a Delaware corporation
and a wholly-owned Subsidiary of Cingular ("Merger
_____________
CINGULAR WIRELESS LLC
– SERVICES, INC.
By: /s/ John Zeglis
--------------------------------------
Name: John Zeglis
Title: CEO
CINGULAR WIRELESS CORPORATION
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
CINGULAR WIRELESS LLC
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
LINKS I CORPORATION
By: /s/ Rick Moore
--------------------------------------
Name: Rick Moore
Title: Authorized Officer
-
_____________
dt 159935
;
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Agreement and Plan of Merger
Agreement and Plan of Merger (240K)
Doc #269766: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
by and among
AT&T WIRELESS SERVICES, INC.
TL ACQUISITION CORP.
and
TELECORP PCS, INC.
Dated as of October 7, 2001
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
Page
----
ARTICLE I
THE MERGER
1.1 The Merger.............................................................1
1.2 Effective Time.........................................................1
1.3 Effect of the Merger...................................................2
1.4 Certificate of Incorporation and By-laws of the Surviving Corporation..2
1.5 Directors and Officers.................................................2
1.6 Conversion of Capital Stock, Etc.......................................2
1.7 Cancellation of Certain Shares; Conversion of Merger Sub Stock.........4
1.8 Stock Options; Restricted Stock........................................5
1.9 Adjustments............................................................6
1.10 Fractional Shares......................................................6
1.11 Surrender of Certificates..............................................7
1.12 Further Ownership Rights in Shares.....................................8
1.13 Closing................................................................9
1.14 Lost, Stolen or Destroyed Certificates.................................9
1.15 Follow-On Merger.......................................................9
1.16 Dissenting Shares......................................................9
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF TELECORP
2.1 Organization and Qualification; Subsidiaries..........................10
2.2 Certificate of Incorporation; By-laws.................................11
2.3 Capitalization........................................................11
2.4 Authority; Enforceability.............................................13
2.5 Board Recommendation; Required Vote...................................13
2.6 No Conflict; Required Filings and Consents............................14
2.7 Material Agreements...................................................15
2.8 Compliance............................................................16
2.9 SEC Filings; Financial Statements.....................................17
2.10 Licenses and Authorizations...........................................17
2.11 No Violation of Law...................................................20
2.12 Absence of Certain Changes or Events..................................21
2.13 Absence of Liabilities................................................21
2.14 Absence of Litigation.................................................21
2.15 Employee Benefit Plans................................................21
-i-
{PAGE}
2.16 Employment and Labor Matters..........................................24
2.17 Registration Statement; Proxy Statement/Prospectus....................24
2.18 Microwave Clearing....................................................25
2.19 Title to Assets; Leases...............................................25
2.20 Taxes.................................................................25
2.21 Environmental Matters.................................................27
2.22 Intellectual Property.................................................27
2.23 No Restrictions on the Merger; Takeover Statutes......................28
2.24 Tax Matters...........................................................28
2.25 Build-out Requirements................................................29
2.26 Brokers...............................................................29
2.27 Opinion of Financial Advisor..........................................29
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF AWS
3.1 Organization and Qualification; Subsidiaries..........................30
3.2 Certificate of Incorporation; By-laws.................................30
3.3 Capitalization........................................................30
3.4 Authority; Enforceability.............................................31
3.5 No Conflict; Required Filings and Consents............................31
3.6 Compliance............................................................32
3.7 SEC Filings; Financial Statements.....................................32
3.8 Licenses and Authorizations...........................................33
3.9 No Violation of Law...................................................33
3.10 Absence of Litigation.................................................33
3.11 Registration Statement; Proxy Statement/Prospectus....................34
3.12 Taxes.................................................................34
3.13 Tax Matters...........................................................35
3.14 Absence of Changes....................................................35
3.15 Brokers...............................................................35
3.16 Severance Policy; Letter Agreement....................................35
ARTICLE IV
ADDITIONAL AGREEMENTS
4.1 Access to Information; Confidentiality................................35
4.2 Conduct of Business Pending the Closing Date..........................36
4.3 Registration Statement; Other Filings; Board Recommendations..........40
4.4 Meeting of TeleCorp Stockholders......................................40
4.5 Non-Solicitation......................................................41
4.6 Blue Sky..............................................................42
4.7 Registration and Listing of AWS Capital Stock.........................42
4.8 Further Actions.......................................................43
4.9 Notification..........................................................45
-ii-
{PAGE}
4.10 Notice of Breaches; Updates...........................................45
4.11 Affiliates............................................................45
4.12 Employee Benefit Matters..............................................46
4.13 Indemnification and Insurance.........................................46
4.14 Plan of Reorganization................................................47
4.15 Tax-Free Exchange.....................................................47
4.16 Extension of Birmingham/Tuscaloosa Put Right..........................48
ARTICLE V
CLOSING CONDITIONS
5.1 Conditions to Obligations of TeleCorp and AWS to Effect the Merger....48
5.2 Additional Conditions to Obligations of TeleCorp......................48
5.3 Additional Conditions to the Obligations of AWS.......................49
ARTICLE VI
TERMINATION
6.1 General...............................................................51
6.2 Obligations in Event of Termination...................................52
6.3 Termination Fees......................................................52
ARTICLE VII
NO SURVIVAL
7.1 No Survival of Representations and Warranties.........................53
ARTICLE VIII
MISCELLANEOUS
8.1 Public Announcements..................................................53
8.2 Fees and Expenses.....................................................53
8.3 Notices...............................................................53
8.4 Certain Definitions...................................................55
8.5 Interpretation........................................................57
8.6 Entire Agreement......................................................57
8.7 Binding Effect; Benefit...............................................57
8.8 Assignability.........................................................57
8.9 Amendment; Waiver.....................................................57
8.10 Section Headings; Table of Contents...................................57
8.11 Severability..........................................................57
8.12 Counterparts..........................................................57
8.13 Governing Law; Jurisdiction and Service of Process....................57
8.14 Waiver of Jury Trial..................................................58
-iii-
{PAGE}
EXHIBITS
Exhibit A AWS Series C Preferred Certificate of Designations
Exhibit B Form of AWS Series E Preferred Certificate of Designations
Exhibit C Form of Affiliates Letter
Exhibit D Form of AWS Tax Representation Letter
Exhibit E Form of TeleCorp Tax Representation Letter
Exhibit F Transfer Agreements
Exhibit G Change of Control Severance Policy
Exhibit H Letter Agreement with TeleCorp Management Corp.
-iv-
{PAGE}
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of October
7, 2001, by and among TeleCorp PCS, Inc., a Delaware corporation ("TeleCorp"),
AT&T Wireless Services, Inc., a Delaware corporation ("AWS") and TL Acquisition
Corp., a newly formed Delaware corporation and a wholly owned subsidiary of AWS
("Merger Sub").
WITNESSETH:
WHEREAS, the respective Boards of Directors of TeleCorp, AWS and
Merger Sub, as well as all of the directors of TeleCorp who are not employees of
AWS (the "Disinterested Directors"), have approved this Agreement, and deem it
advisable and in the best interests of their respective stockholders to
consummate the merger of Merger Sub with and into TeleCorp on the terms and
conditions set forth in this Agreement (the "Merger");
WHEREAS, for United States federal income tax purposes, it is
intended that either the Merger or the combination of the Merger and the
Follow-On Merger, as applicable, qualify as a "reorganization" within the
meaning of Section 368 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the rules and regulations promulgated thereunder;
WHEREAS, as an inducement to and a condition to AWS entering into
this Agreement, simultaneously herewith certain stockholders of TeleCorp are
entering into Voting Agreements relating to the agreement of such stockholders
to vote to approve the transactions contemplated by this Agreement (the "Voting
Agreements"); and
NOW, THEREFORE, in consideration of the premises and mutual
covenants herein contained, and other good and valuable consideration, the
receipt and sufficiency of which is hereby acknowledged, the parties hereto,
intending to be legally bound, agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time and subject to the terms and
conditions of this Agreement, and in accordance with the General Corporation Law
of the State of Delaware ("DGCL"), Merger Sub shall be merged with and into
TeleCorp, with TeleCorp as the surviving corporation. From and after the
Effective Time, the separate corporate existence of Merger Sub shall cease, and
TeleCorp, as the surviving corporation, shall continue its existence under the
laws of the State of Delaware as a wholly owned subsidiary of AWS. TeleCorp, as
the surviving corporation after the Merger, is hereinafter sometimes referred to
as the "Surviving Corporation."
1.2 Effective Time. As soon as practicable after satisfaction or, to
the extent permitted hereunder, waiver of the conditions set forth in Article V
(excluding, but subject to the satisfaction or waiver of, conditions that, by
their nature, cannot be satisfied prior to the Closing Date), but in no event
prior to the Closing, TeleCorp and AWS shall cause the Merger to be consummated
by filing a certificate of merger (the "Certificate of Merger") with the
Secretary of State of the State of Delaware, executed in accordance with the
relevant provisions of the DGCL
{PAGE}
(the date and time of such filing, or such later date and time as may be
specified by mutual agreement in the Certificate of Merger, being the "Effective
Time").
1.3 Effect of the Merger. At the Effective Time, the effect of the
Merger shall be as provided in the applicable provisions of the DGCL and the
Certificate of Merger. Without limiting the generality of the foregoing, and
subject thereto, at the Effective Time all the assets, property, rights,
privileges, immunities, powers and franchises of TeleCorp and Merger Sub shall
vest in the Surviving Corporation, and all debts, liabilities and duties of
TeleCorp and Merger Sub shall become the debts, liabilities and duties of the
Surviving Corporation.
1.4 Certificate of Incorporation and By-laws of the Surviving
Corporation. At the Effective Time, by virtue of the Merger and without further
action on the part of any party, the Restated Certificate of Incorporation of
TeleCorp shall be amended to read in its entirety as the certificate of
incorporation of Merger Sub in effect immediately prior to the Effective Time
(except that the name of the corporation shall remain TeleCorp, and the
provision relating to the incorporator shall be omitted) and as so amended shall
be the certificate of incorporation of the Surviving Corporation, until
thereafter amended as provided by the DGCL; provided that, if the votes received
in connection with the Required Stockholder Approval are not sufficient under
the Restated Certificate of Incorporation of TeleCorp to cause such amendment,
then the Restated Certificate of Incorporation of TeleCorp as in effect
immediately prior to the Effective Time shall remain the certificate of
incorporation of the Surviving Corporation, until thereafter amended as provided
by the DGCL. At the Effective Time, the by-laws of Merger Sub shall be the
by-laws of the Surviving Corporation until thereafter amended as provided by the
DGCL.
1.5 Directors and Officers.
(a) The directors of Merger Sub immediately prior to the Effective
Time shall be the initial directors of the Surviving Corporation, each to hold
office in accordance with the Certificate of Incorporation and the By-laws of
the Surviving Corporation until their respective successors are duly elected or
appointed and qualified or until their earlier death, resignation or removal in
accordance with the Surviving Corporation's Certificate of Incorporation and
By-laws.
(b) The officers of TeleCorp immediately prior to the Effective Time
shall be the initial officers of the Surviving Corporation, each to hold office
in accordance with the Certificate of Incorporation and the By-laws of Merger
Sub until their respective successors are duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with Merger Sub's Certificate of Incorporation and By-laws.
1.6 Conversion of Capital Stock, Etc. Subject to the provisions of
this Article I, at the Effective Time, by virtue of the Merger, and without any
action on the part of any party:
(a) With respect to each share of Common Stock, par value $0.01 per
share, of TeleCorp ("TeleCorp Common Stock"):
(i) each share of TeleCorp Class A Voting Common Stock, par value
$0.01 per share, issued and outstanding immediately prior to the Effective
Time (other than any shares to be canceled pursuant to Section 1.7) shall
be converted automatically into and
-2-
{PAGE}
become changeable for .9 shares of AWS, par value $0.01 per share ("AWS
Common Stock");
(ii) each share of TeleCorp Class C Common Stock, par value $0.01
per share, issued and outstanding immediately prior to the Effective Time
(other than any shares to be canceled pursuant to Section 1.7 or the
Dissenting Shares) shall be converted automatically into and become
exchangeable for .9 shares of AWS Common Stock;
(iii) each share of TeleCorp Class D Common Stock, par value $0.01
per share, issued and outstanding immediately prior to the Effective Time
(other than any shares to be canceled pursuant to Section 1.7 or the
Dissenting Shares) shall be converted automatically into and become
exchangeable for .9 shares of AWS Common Stock;
(iv) each share of TeleCorp Class E Common Stock, par value $0.01
per share, issued and outstanding immediately prior to the Effective Time
(other than any shares to be canceled pursuant to Section 1.7 or the
Dissenting Shares) shall be converted automatically into and become
exchangeable for .9 shares of AWS Common Stock;
(v) each share of TeleCorp Class F Common Stock, par value $0.01 per
269766
|
AT&T Wireless
As referenced in this Agreement and Plan of Merger:
AT&T WIRELESS SERVICES, – FILENAME}ex13dmergeragmnt.txt
{DESCRIPTION}EXHIBIT 2.2-AGREEMENT AND PLAN OF MERGER
{TEXT}
EXECUTION COPY
--------------------------------------------------------------------------------
AGREEMENT AND PLAN OF MERGER
by and among
AT&T WIRELESS SERVICES, INC.
TL ACQUISITION CORP.
and
TELECORP PCS, INC.
Dated as of October 7, 2001
--------------------------------------------------------------------------------
{PAGE}
TABLE OF CONTENTS
Page
----
ARTICLE I
THE
_____________
AT&T Wireless Services, – AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of October
7, 2001, by and among TeleCorp PCS, Inc., a Delaware corporation ("TeleCorp"),
AT&T Wireless Services, Inc., a Delaware corporation ("AWS") and TL Acquisition
Corp., a newly formed Delaware corporation and a wholly owned subsidiary of AWS
("Merger
_____________
AT&T Wireless Services, – copy to:
Richards, Layton & Finger
One Rodney Square
Wilmington, Delaware 19801
Attention: C. Stephen Bigler, Esq.
Fax: (302) 784-7017
If to AWS:
AT&T Wireless Services, Inc.
Building 1
7277 164th Avenue, N.E.
Redmond, WA 98052
Attention: Gregory P. Landis, Esq.
Fax (425) 580-8333
with a
_____________
AT&T WIRELESS SERVICES, – date first above written.
TELECORP PCS, INC.
By: /s/ Thomas M. Sullivan
-----------------------------------
Name: Thomas M. Sullivan
----------------------------
Title: Chief Financial Officer &
--------------------------
Executive Vice President
AT&T WIRELESS SERVICES, INC.
By: /s/ John D. Zeglis
----------------------------------
Name: John D. Zeglis
--------------------------
Title: Chairman and Chief
-------------------------
Executive Officer
TL ACQUISITION CORP.
By: /s/ William
_____________
dt 179817
;
Ericsson
As referenced in this Agreement and Plan of Merger:
Ericsson Inc. – of May 1, 1998, among Lucent Technologies Inc. and TeleCorp
PCS, Inc., and the Acquisition Agreement, dated as of December 30, 1998 among
Ericsson Inc. , Tritel Finance, Inc. and Tritel Communications, Inc. do not apply
to or limit or bind TeleCorp or its Subsidiaries beyond December 30,
_____________
dt 166721
;
Lucent
As referenced in this Agreement and Plan of Merger:
Lucent Technologies Inc. – limiting the generality of the foregoing, the exclusivity terms of each
of the General Agreement for Purchase of Personal Communications Systems and
Services, dated as of May 1, 1998, among Lucent Technologies Inc. and TeleCorp
PCS, Inc., and the Acquisition Agreement, dated as of December 30, 1998 among
Ericsson Inc., Tritel Finance, Inc. and Tritel Communications, Inc. do not apply
to or
_____________
Lucent Technologies, Inc. – management, customer information and call processing.
(c) Additional Indebtedness. Section 4.2(a)(ii)(L) notwithstanding:
(i) TeleCorp and its Subsidiaries, may incur new or additional indebtedness
under agreements with Lucent Technologies, Inc. existing on the date hereof,
(ii) TeleCorp and its Subsidiaries may incur additional indebtedness for
borrowed money ("Additional Debt"), provided that (x) the total amount of such
Additional Debt
_____________
dt 1441928
;
|
 J.P. Morgan
As referenced in this Agreement and Plan of Merger:
J.P. Morgan Securities
– TeleCorp Disclosure Schedule.
2.27 Opinion of Financial Advisor. TeleCorp has received the written
opinions of its financial advisors, Lehman Bros. Inc. and J.P. Morgan Securities
Inc., to the effect that, in their opinion, (i) the Exchange Ratio applicable to
each class of TeleCorp Common Stock (other than
_____________
dt 160969
;
Merrill Lynch
As referenced in this Agreement and Plan of Merger:
Merrill Lynch & Co – or in
the aggregate, has had, or could reasonably be expected to have, an AWS Material
Adverse Effect.
3.15 Brokers. Except for Merrill Lynch & Co ., no broker, financial
advisor, finder or investment banker or other Person is entitled to any
broker's, financial advisor's, finder's
_____________
dt 177974
;
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| 2004 |
Agreement and Plan of Merger
Agreement and Plan of Merger (236K)
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AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX
of the Agreement and Plan of Merger,
SBC COMMUNICATIONS INC.
and
BELLSOUTH CORPORATION
Dated as of February 17, 2004
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
{S} {C}
ARTICLE I The Merger; Closing; Effective Time...........................................................1
1.1. The Merger......................................................................................1
1.2. Closing.........................................................................................2
1.3. Effective Time..................................................................................2
ARTICLE II Certificate of Incorporation and By-Laws of the Surviving Corporation........................2
2.1. The Certificate of Incorporation................................................................2
2.2. The By-Laws.....................................................................................2
ARTICLE III Officers and Directors of the Surviving Corporation.........................................2
3.1. Directors.......................................................................................2
3.2. Officers........................................................................................3
ARTICLE IV Effect of the Merger on Capital Stock; Exchange of Certificates..............................3
4.1. Effect on Capital Stock.........................................................................3
4.2. Exchange of Certificates for Shares.............................................................4
4.3. Dissenters' Rights..............................................................................6
4.4. Adjustments to Prevent Dilution.................................................................6
4.5. Treatment of Company Options/Other Equity Awards................................................6
4.6. Treatment of DoCoMo Warrant.....................................................................7
ARTICLE V Representations and Warranties................................................................8
5.1. Representations and Warranties of the Company...................................................8
5.2. Representations and Warranties of Cingular and Merger Sub......................................28
5.3. Representations and Warranties of SBC and BellSouth............................................31
ARTICLE VI Covenants...................................................................................33
6.1. Interim Operations.............................................................................33
6.2. Acquisition Proposals..........................................................................38
6.3. Information Supplied...........................................................................39
6.4. Stockholders Meeting...........................................................................40
6.5. Filings; Other Actions; Notification...........................................................40
6.6. Access.........................................................................................42
6.7. Consent/Tender Offers..........................................................................43
6.8. Employee Benefits..............................................................................44
6.9. Indemnification; Directors' and Officers' Insurance............................................46
6.10. Other Actions by the Company...................................................................48
{/TABLE}
-i-
{PAGE}
{TABLE}
{CAPTION}
PAGE
{S} {C}
ARTICLE VII Conditions.................................................................................50
7.1. Conditions to the Obligations of the Company, Cingular and Merger Sub to Effect the Merger.....50
7.2. Conditions to Obligations of Cingular and Merger Sub...........................................51
7.3. Conditions to Obligation of the Company........................................................53
ARTICLE VIII Termination...............................................................................53
8.1. Termination by Mutual Consent..................................................................53
8.2. Termination by Either Cingular or the Company..................................................53
8.3. Termination by the Company.....................................................................54
8.4. Termination by Cingular........................................................................54
8.5. Effect of Termination and Abandonment..........................................................55
ARTICLE IX Miscellaneous and General...................................................................56
9.1. Survival.......................................................................................56
9.2. Modification or Amendment......................................................................56
9.3. Waiver of Conditions...........................................................................56
9.4. Counterparts...................................................................................56
9.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL..................................................56
9.6. Notices........................................................................................57
9.7. Entire Agreement; NO OTHER REPRESENTATIONS.....................................................59
9.8. No Third Party Beneficiaries...................................................................59
9.9. Obligations of Cingular and of the Company.....................................................60
9.10. Definitions....................................................................................60
9.11. Severability...................................................................................60
9.12. Interpretation; Construction...................................................................60
9.13. Guarantee; Breach..............................................................................61
9.14. Publicity......................................................................................61
9.15. Expenses.......................................................................................61
9.16. Assignment.....................................................................................61
{/TABLE}
-ii-
{PAGE}
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this
"Agreement"), dated as of February 17, 2004, by and among AT&T Wireless
Services, Inc., a Delaware corporation (the "Company"), Cingular Wireless
Corporation, a Delaware corporation ("Cingular"), Cingular Wireless LLC, a
Delaware limited liability company ("Cingular Wireless"), and Links I
Corporation, a Delaware corporation and a wholly-owned Subsidiary of Cingular
("Merger Sub", the Company and Merger Sub sometimes being hereinafter
collectively referred to as the "Constituent Corporations") and, solely with
respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX of this Agreement, SBC
Communications Inc., a Delaware corporation ("SBC") and BellSouth Corporation, a
Georgia corporation ("BellSouth").
RECITALS
WHEREAS, the board of directors ("Board of Directors") of each
of Cingular, Merger Sub and the Company has determined that the merger of Merger
Sub with and into the Company (the "Merger") upon the terms and subject to the
conditions set forth in this Agreement is advisable and by resolutions duly
adopted, has approved and adopted this Agreement; and
WHEREAS, the Company, Cingular Wireless, Cingular, Merger Sub,
SBC and BellSouth desire to make those representations, warranties, covenants
and agreements specified herein in connection with this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein,
Cingular, Cingular Wireless, Merger Sub, the Company and, solely with respect to
Sections 5.3, 6.1(b), 6.5(b) and Article IX of this Agreement, SBC and BellSouth
agree as follows:
ARTICLE I
The Merger; Closing; Effective Time
1.1. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, at the Effective Time, Merger Sub shall
be merged with and into the Company and the separate corporate existence of
Merger Sub shall thereupon cease. The Company shall be the surviving corporation
in the Merger (sometimes hereinafter referred to as the "Surviving
Corporation"), and the separate corporate existence of the Company with all its
rights, privileges, immunities, powers and franchises shall continue unaffected
by the Merger, except as set forth in Article II of this Agreement. The Merger
{PAGE}
shall have the effects specified in the Delaware General Corporation Law, as
amended (the "DGCL").
1.2. Closing. Unless otherwise mutually agreed in writing
between the Company and Cingular, the closing for the Merger (the "Closing")
shall take place (i) at the offices of Fried, Frank, Harris, Shriver & Jacobson
LLP, One New York Plaza, New York, New York 10004, at 9:00 A.M. local time on
the fifth business day (the "Closing Date") following the day on which the last
to be satisfied or waived of the conditions set forth in Article VII (other than
those conditions that by their nature are to be satisfied at the Closing, but
subject to the satisfaction or waiver of those conditions) shall be satisfied or
waived in accordance with this Agreement.
1.3. Effective Time. As soon as practicable following the
Closing, the Company and Cingular will cause a Certificate of Merger (the
"Delaware Certificate of Merger") to be executed, acknowledged and filed with
the Secretary of State of the State of Delaware as provided in Section 251 of
the DGCL. The Merger shall become effective at the time when the Delaware
Certificate of Merger has been duly filed with the Secretary of State of the
State of Delaware or at such later time as may be agreed by the parties in
writing and specified in the Delaware Certificate of Merger (the "Effective
Time").
ARTICLE II
Certificate of Incorporation and By-Laws
of the Surviving Corporation
2.1. The Certificate of Incorporation. At the Effective
Time, the certificate of incorporation of the Surviving Corporation (the
"Charter") shall be amended in its entirety to read as set forth in Exhibit A
hereto, until thereafter amended as provided therein or by applicable Law.
2.2. The By-Laws. The by-laws of Merger Sub in effect at
the Effective Time shall be the by-laws of the Surviving Corporation (the
"By-Laws"), until thereafter amended as provided therein or by applicable Law.
ARTICLE III
Officers and Directors
of the Surviving Corporation
3.1. Directors. The directors of Merger Sub at the
Effective Time shall, from and after the Effective Time, be the directors of the
Surviving Corporation until their successors have been duly elected or appointed
and qualified or until their earlier death, resignation or removal in accordance
with the Charter and the By-Laws.
271283
|
AT&T Wireless
As referenced in this Agreement and Plan of Merger:
AT&T WIRELESS SERVICES, – and, solely for the
purposes of certain sections of the Merger Agreement, SBC and
BellSouth.
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b),
_____________
AT&T Wireless
Services, – AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this
"Agreement"), dated as of February 17, 2004, by and among AT&T Wireless
Services, Inc., a Delaware corporation (the "Company"), Cingular Wireless
Corporation, a Delaware corporation ("Cingular"), Cingular Wireless LLC, a
Delaware limited liability company ("Cingular
_____________
AT&T Wireless Services, – Jacobson LLP
One New York Plaza, New York, NY 10004
Attention: Gail L. Weinstein, Esq.
Fax: (212) 859-4000
if to the Company
AT&T Wireless Services, Inc.
7277 164th Avenue NE
Building 1
Redmond, WA 98052
Attention: Gregory P. Landis, General Counsel
Fax: (425) 580-8505
with a
_____________
AT&T WIRELESS SERVICES, – Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
AT&T WIRELESS SERVICES, INC.
By: /s/ John Zeglis
-------------------------------------------
Name: John Zeglis
Title:CEO
CINGULAR WIRELESS CORPORATION
By: /s/ Stan Sigman
-------------------------------------------
Name: Stan Sigman
Title: CEO
_____________
dt 179908
;
AT&T
As referenced in this Agreement and Plan of Merger:
AT&T Corp – 2000 (the "DoCoMo Warrant Agreement"), by and among the
Company, NTT DoCoMo, Inc., a corporation organized under the laws of Japan
("DoCoMo") and AT&T Corp ., a New York corporation ("Former Parent") shall only
entitle the holder thereof to receive upon exercise thereof and payment of the
exercise
_____________
dt 177684
;
|
Cingular
As referenced in this Agreement and Plan of Merger:
Cingular Wireless Corp – 99.1
CINGULAR WIRELESS LLC
--------------------------------------------------------------------------------
EXHIBITS - Agreement and Plan of Merger, dated as of February 17, 2004,
by and among AT&T Wireless, Cingular Wireless Corp oration,
Links I Corporation, Cingular Wireless LLC and, solely for the
purposes of certain sections of the Merger Agreement, SBC and
BellSouth.
AGREEMENT
_____________
CINGULAR WIRELESS CORP – of certain sections of the Merger Agreement, SBC and
BellSouth.
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORP ORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and
_____________
Cingular Wireless
Corp – hereinafter called this
"Agreement"), dated as of February 17, 2004, by and among AT&T Wireless
Services, Inc., a Delaware corporation (the "Company"), Cingular Wireless
Corp oration, a Delaware corporation ("Cingular"), Cingular Wireless LLC, a
Delaware limited liability company ("Cingular Wireless"), and Links I
Corporation, a Delaware corporation and
_____________
Cingular Wireless Corp – personally or sent by registered or certified mail, postage
prepaid, facsimile or by overnight courier:
if to Cingular, Cingular Wireless or Merger Sub:
Cingular Wireless Corp oration
5565 Glenridge Connection
Suite 1100
Atlanta, Georgia 30342
Attention: Joaquin Carbonell, Esq.
Fax: (404) 249-4488
with copies to:
SBC Communications Inc.
_____________
CINGULAR WIRELESS CORP – parties hereto as of the date
first written above.
AT&T WIRELESS SERVICES, INC.
By: /s/ John Zeglis
-------------------------------------------
Name: John Zeglis
Title:CEO
CINGULAR WIRELESS CORP ORATION
By: /s/ Stan Sigman
-------------------------------------------
Name: Stan Sigman
Title: CEO
CINGULAR WIRELESS LLC
By: /s/ Stan Sigman
-------------------------------------------
Name: Stan Sigman
Title: CEO
LINKS
_____________
dt 180292
;
Cingular
As referenced in this Agreement and Plan of Merger:
CINGULAR WIRELESS LLC
– EX-99.1
{SEQUENCE}3
{FILENAME}g87319exv99w1.txt
{DESCRIPTION}AGREEMENT AND PLAN OF MERGER DATED 02/17/2004
{TEXT}
{PAGE}
EXHIBIT 99.1
CINGULAR WIRELESS LLC
--------------------------------------------------------------------------------
EXHIBITS - Agreement and Plan of Merger, dated as of February 17, 2004,
by and among AT&T Wireless, Cingular Wireless Corporation,
Links
_____________
Cingular Wireless LLC – Agreement and Plan of Merger, dated as of February 17, 2004,
by and among AT&T Wireless, Cingular Wireless Corporation,
Links I Corporation, Cingular Wireless LLC and, solely for the
purposes of certain sections of the Merger Agreement, SBC and
BellSouth.
AGREEMENT AND PLAN OF MERGER
By and Among
_____________
CINGULAR WIRELESS LLC
– of the Merger Agreement, SBC and
BellSouth.
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX
of
_____________
Cingular Wireless LLC, – February 17, 2004, by and among AT&T Wireless
Services, Inc., a Delaware corporation (the "Company"), Cingular Wireless
Corporation, a Delaware corporation ("Cingular"), Cingular Wireless LLC, a
Delaware limited liability company ("Cingular Wireless"), and Links I
Corporation, a Delaware corporation and a wholly-owned Subsidiary of Cingular
("Merger
_____________
CINGULAR WIRELESS LLC
– SERVICES, INC.
By: /s/ John Zeglis
-------------------------------------------
Name: John Zeglis
Title:CEO
CINGULAR WIRELESS CORPORATION
By: /s/ Stan Sigman
-------------------------------------------
Name: Stan Sigman
Title: CEO
CINGULAR WIRELESS LLC
By: /s/ Stan Sigman
-------------------------------------------
Name: Stan Sigman
Title: CEO
LINKS I CORPORATION
By: /s/ Rick Moore
-------------------------------------------
Name: Rick Moore
Title: Authorized Officer
-
_____________
dt 180228
;
More... |
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Full Doc
| 2004 |
Agreement and Plan of Merger
Agreement and Plan of Merger (236K)
Doc #271284: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX
of the Agreement and Plan of Merger,
SBC COMMUNICATIONS INC.
and
BELLSOUTH CORPORATION
Dated as of February 17, 2004
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
{S} {C}
ARTICLE I The Merger; Closing; Effective Time...........................................................1
1.1. The Merger......................................................................................1
1.2. Closing.........................................................................................2
1.3. Effective Time..................................................................................2
ARTICLE II Certificate of Incorporation and By-Laws of the Surviving Corporation........................2
2.1. The Certificate of Incorporation................................................................2
2.2. The By-Laws.....................................................................................2
ARTICLE III Officers and Directors of the Surviving Corporation.........................................2
3.1. Directors.......................................................................................2
3.2. Officers........................................................................................3
ARTICLE IV Effect of the Merger on Capital Stock; Exchange of Certificates..............................3
4.1. Effect on Capital Stock.........................................................................3
4.2. Exchange of Certificates for Shares.............................................................4
4.3. Dissenters' Rights..............................................................................6
4.4. Adjustments to Prevent Dilution.................................................................6
4.5. Treatment of Company Options/Other Equity Awards................................................6
4.6. Treatment of DoCoMo Warrant.....................................................................7
ARTICLE V Representations and Warranties................................................................8
5.1. Representations and Warranties of the Company...................................................8
5.2. Representations and Warranties of Cingular and Merger Sub......................................28
5.3. Representations and Warranties of SBC and BellSouth............................................31
ARTICLE VI Covenants...................................................................................33
6.1. Interim Operations.............................................................................33
6.2. Acquisition Proposals..........................................................................38
6.3. Information Supplied...........................................................................39
6.4. Stockholders Meeting...........................................................................40
6.5. Filings; Other Actions; Notification...........................................................40
6.6. Access.........................................................................................42
6.7. Consent/Tender Offers..........................................................................43
6.8. Employee Benefits..............................................................................44
6.9. Indemnification; Directors' and Officers' Insurance............................................46
6.10. Other Actions by the Company...................................................................48
{/TABLE}
-i-
{PAGE}
{TABLE}
{CAPTION}
PAGE
{S} {C}
ARTICLE VII Conditions.................................................................................50
7.1. Conditions to the Obligations of the Company, Cingular and Merger Sub to Effect the Merger.....50
7.2. Conditions to Obligations of Cingular and Merger Sub...........................................51
7.3. Conditions to Obligation of the Company........................................................53
ARTICLE VIII Termination...............................................................................53
8.1. Termination by Mutual Consent..................................................................53
8.2. Termination by Either Cingular or the Company..................................................53
8.3. Termination by the Company.....................................................................54
8.4. Termination by Cingular........................................................................54
8.5. Effect of Termination and Abandonment..........................................................55
ARTICLE IX Miscellaneous and General...................................................................56
9.1. Survival.......................................................................................56
9.2. Modification or Amendment......................................................................56
9.3. Waiver of Conditions...........................................................................56
9.4. Counterparts...................................................................................56
9.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL..................................................56
9.6. Notices........................................................................................57
9.7. Entire Agreement; NO OTHER REPRESENTATIONS.....................................................59
9.8. No Third Party Beneficiaries...................................................................59
9.9. Obligations of Cingular and of the Company.....................................................60
9.10. Definitions....................................................................................60
9.11. Severability...................................................................................60
9.12. Interpretation; Construction...................................................................60
9.13. Guarantee; Breach..............................................................................61
9.14. Publicity......................................................................................61
9.15. Expenses.......................................................................................61
9.16. Assignment.....................................................................................61
{/TABLE}
-ii-
{PAGE}
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this
"Agreement"), dated as of February 17, 2004, by and among AT&T Wireless
Services, Inc., a Delaware corporation (the "Company"), Cingular Wireless
Corporation, a Delaware corporation ("Cingular"), Cingular Wireless LLC, a
Delaware limited liability company ("Cingular Wireless"), and Links I
Corporation, a Delaware corporation and a wholly-owned Subsidiary of Cingular
("Merger Sub", the Company and Merger Sub sometimes being hereinafter
collectively referred to as the "Constituent Corporations") and, solely with
respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX of this Agreement, SBC
Communications Inc., a Delaware corporation ("SBC") and BellSouth Corporation, a
Georgia corporation ("BellSouth").
RECITALS
WHEREAS, the board of directors ("Board of Directors") of each
of Cingular, Merger Sub and the Company has determined that the merger of Merger
Sub with and into the Company (the "Merger") upon the terms and subject to the
conditions set forth in this Agreement is advisable and by resolutions duly
adopted, has approved and adopted this Agreement; and
WHEREAS, the Company, Cingular Wireless, Cingular, Merger Sub,
SBC and BellSouth desire to make those representations, warranties, covenants
and agreements specified herein in connection with this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein,
Cingular, Cingular Wireless, Merger Sub, the Company and, solely with respect to
Sections 5.3, 6.1(b), 6.5(b) and Article IX of this Agreement, SBC and BellSouth
agree as follows:
ARTICLE I
The Merger; Closing; Effective Time
1.1. The Merger. Upon the terms and subject to the
conditions set forth in this Agreement, at the Effective Time, Merger Sub shall
be merged with and into the Company and the separate corporate existence of
Merger Sub shall thereupon cease. The Company shall be the surviving corporation
in the Merger (sometimes hereinafter referred to as the "Surviving
Corporation"), and the separate corporate existence of the Company with all its
rights, privileges, immunities, powers and franchises shall continue unaffected
by the Merger, except as set forth in Article II of this Agreement. The Merger
{PAGE}
shall have the effects specified in the Delaware General Corporation Law, as
amended (the "DGCL").
1.2. Closing. Unless otherwise mutually agreed in writing
between the Company and Cingular, the closing for the Merger (the "Closing")
shall take place (i) at the offices of Fried, Frank, Harris, Shriver & Jacobson
LLP, One New York Plaza, New York, New York 10004, at 9:00 A.M. local time on
the fifth business day (the "Closing Date") following the day on which the last
to be satisfied or waived of the conditions set forth in Article VII (other than
those conditions that by their nature are to be satisfied at the Closing, but
subject to the satisfaction or waiver of those conditions) shall be satisfied or
waived in accordance with this Agreement.
1.3. Effective Time. As soon as practicable following the
Closing, the Company and Cingular will cause a Certificate of Merger (the
"Delaware Certificate of Merger") to be executed, acknowledged and filed with
the Secretary of State of the State of Delaware as provided in Section 251 of
the DGCL. The Merger shall become effective at the time when the Delaware
Certificate of Merger has been duly filed with the Secretary of State of the
State of Delaware or at such later time as may be agreed by the parties in
writing and specified in the Delaware Certificate of Merger (the "Effective
Time").
ARTICLE II
Certificate of Incorporation and By-Laws
of the Surviving Corporation
2.1. The Certificate of Incorporation. At the Effective
Time, the certificate of incorporation of the Surviving Corporation (the
"Charter") shall be amended in its entirety to read as set forth in Exhibit A
hereto, until thereafter amended as provided therein or by applicable Law.
2.2. The By-Laws. The by-laws of Merger Sub in effect at
the Effective Time shall be the by-laws of the Surviving Corporation (the
"By-Laws"), until thereafter amended as provided therein or by applicable Law.
ARTICLE III
Officers and Directors
of the Surviving Corporation
3.1. Directors. The directors of Merger Sub at the
Effective Time shall, from and after the Effective Time, be the directors of the
Surviving Corporation until their successors have been duly elected or appointed
and qualified or until their earlier death, resignation or removal in accordance
with the Charter and the By-Laws.
271284
|
AT&T Wireless
As referenced in this Agreement and Plan of Merger:
AT&T WIRELESS SERVICES, – and, solely for the
purposes of certain sections of the Merger Agreement, SBC and
BellSouth.
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b),
_____________
AT&T Wireless
Services, – AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this
"Agreement"), dated as of February 17, 2004, by and among AT&T Wireless
Services, Inc., a Delaware corporation (the "Company"), Cingular Wireless
Corporation, a Delaware corporation ("Cingular"), Cingular Wireless LLC, a
Delaware limited liability company ("Cingular
_____________
AT&T Wireless Services, – Jacobson LLP
One New York Plaza, New York, NY 10004
Attention: Gail L. Weinstein, Esq.
Fax: (212) 859-4000
if to the Company
AT&T Wireless Services, Inc.
7277 164th Avenue NE
Building 1
Redmond, WA 98052
Attention: Gregory P. Landis, General Counsel
Fax: (425) 580-8505
with a
_____________
AT&T WIRELESS SERVICES, – Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
AT&T WIRELESS SERVICES, INC.
By: /s/ John Zeglis
-------------------------------------------
Name: John Zeglis
Title:CEO
CINGULAR WIRELESS CORPORATION
By: /s/ Stan Sigman
-------------------------------------------
Name: Stan Sigman
Title: CEO
_____________
dt 179909
;
AT&T
As referenced in this Agreement and Plan of Merger:
AT&T Corp – 2000 (the "DoCoMo Warrant Agreement"), by and among the
Company, NTT DoCoMo, Inc., a corporation organized under the laws of Japan
("DoCoMo") and AT&T Corp ., a New York corporation ("Former Parent") shall only
entitle the holder thereof to receive upon exercise thereof and payment of the
exercise
_____________
dt 177685
;
|
Cingular
As referenced in this Agreement and Plan of Merger:
Cingular Wireless Corp – 99.1
CINGULAR WIRELESS LLC
--------------------------------------------------------------------------------
EXHIBITS - Agreement and Plan of Merger, dated as of February 17, 2004,
by and among AT&T Wireless, Cingular Wireless Corp oration,
Links I Corporation, Cingular Wireless LLC and, solely for the
purposes of certain sections of the Merger Agreement, SBC and
BellSouth.
AGREEMENT
_____________
CINGULAR WIRELESS CORP – of certain sections of the Merger Agreement, SBC and
BellSouth.
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORP ORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and
_____________
Cingular Wireless
Corp – hereinafter called this
"Agreement"), dated as of February 17, 2004, by and among AT&T Wireless
Services, Inc., a Delaware corporation (the "Company"), Cingular Wireless
Corp oration, a Delaware corporation ("Cingular"), Cingular Wireless LLC, a
Delaware limited liability company ("Cingular Wireless"), and Links I
Corporation, a Delaware corporation and
_____________
Cingular Wireless Corp – personally or sent by registered or certified mail, postage
prepaid, facsimile or by overnight courier:
if to Cingular, Cingular Wireless or Merger Sub:
Cingular Wireless Corp oration
5565 Glenridge Connection
Suite 1100
Atlanta, Georgia 30342
Attention: Joaquin Carbonell, Esq.
Fax: (404) 249-4488
with copies to:
SBC Communications Inc.
_____________
CINGULAR WIRELESS CORP – parties hereto as of the date
first written above.
AT&T WIRELESS SERVICES, INC.
By: /s/ John Zeglis
-------------------------------------------
Name: John Zeglis
Title:CEO
CINGULAR WIRELESS CORP ORATION
By: /s/ Stan Sigman
-------------------------------------------
Name: Stan Sigman
Title: CEO
CINGULAR WIRELESS LLC
By: /s/ Stan Sigman
-------------------------------------------
Name: Stan Sigman
Title: CEO
LINKS
_____________
dt 180293
;
Cingular
As referenced in this Agreement and Plan of Merger:
CINGULAR WIRELESS LLC
– 1
{SEQUENCE}3
{FILENAME}g87302exv99w1.txt
{DESCRIPTION}EX-99.1 AGREEMENT AND PLAN OF MERGER 2/17/04
{TEXT}
{PAGE}
EXHIBIT 99.1
CINGULAR WIRELESS LLC
--------------------------------------------------------------------------------
EXHIBITS - Agreement and Plan of Merger, dated as of February 17, 2004,
by and among AT&T Wireless, Cingular Wireless Corporation,
Links
_____________
Cingular Wireless LLC – Agreement and Plan of Merger, dated as of February 17, 2004,
by and among AT&T Wireless, Cingular Wireless Corporation,
Links I Corporation, Cingular Wireless LLC and, solely for the
purposes of certain sections of the Merger Agreement, SBC and
BellSouth.
AGREEMENT AND PLAN OF MERGER
By and Among
_____________
CINGULAR WIRELESS LLC
– of the Merger Agreement, SBC and
BellSouth.
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX
of
_____________
Cingular Wireless LLC, – February 17, 2004, by and among AT&T Wireless
Services, Inc., a Delaware corporation (the "Company"), Cingular Wireless
Corporation, a Delaware corporation ("Cingular"), Cingular Wireless LLC, a
Delaware limited liability company ("Cingular Wireless"), and Links I
Corporation, a Delaware corporation and a wholly-owned Subsidiary of Cingular
("Merger
_____________
CINGULAR WIRELESS LLC
– SERVICES, INC.
By: /s/ John Zeglis
-------------------------------------------
Name: John Zeglis
Title:CEO
CINGULAR WIRELESS CORPORATION
By: /s/ Stan Sigman
-------------------------------------------
Name: Stan Sigman
Title: CEO
CINGULAR WIRELESS LLC
By: /s/ Stan Sigman
-------------------------------------------
Name: Stan Sigman
Title: CEO
LINKS I CORPORATION
By: /s/ Rick Moore
-------------------------------------------
Name: Rick Moore
Title: Authorized Officer
-
_____________
dt 180229
;
More... |
Preview
Full Doc
| 2004 |
Agreement and Plan of Merger
Agreement and Plan of Merger (229K)
Doc #311059: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX
of the Agreement and Plan of Merger,
SBC COMMUNICATIONS INC.
and
BELLSOUTH CORPORATION
Dated as of February 17, 2004
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
{S} {C}
ARTICLE I The Merger; Closing; Effective Time....................................... 1
1.1. The Merger................................................................... 1
1.2. Closing...................................................................... 2
1.3. Effective Time............................................................... 2
ARTICLE II Certificate of Incorporation and By-Laws of the Surviving Corporation.... 2
2.1. The Certificate of Incorporation............................................. 2
2.2. The By-Laws.................................................................. 2
ARTICLE III Officers and Directors of the Surviving Corporation..................... 2
3.1. Directors.................................................................... 2
3.2. Officers..................................................................... 3
ARTICLE IV Effect of the Merger on Capital Stock; Exchange of Certificates.......... 3
4.1. Effect on Capital Stock...................................................... 3
4.2. Exchange of Certificates for Shares.......................................... 4
4.3. Dissenters' Rights........................................................... 6
4.4. Adjustments to Prevent Dilution.............................................. 6
4.5. Treatment of Company Options/Other Equity Awards............................. 6
4.6. Treatment of DoCoMo Warrant.................................................. 7
ARTICLE V Representations and Warranties............................................ 8
5.1. Representations and Warranties of the Company................................ 8
5.2. Representations and Warranties of Cingular and Merger Sub.................... 28
5.3. Representations and Warranties of SBC and BellSouth.......................... 31
ARTICLE VI Covenants 33
6.1. Interim Operations........................................................... 33
6.2. Acquisition Proposals........................................................ 38
6.3. Information Supplied......................................................... 39
6.4. Stockholders Meeting......................................................... 40
6.5. Filings; Other Actions; Notification......................................... 40
6.6. Access....................................................................... 42
6.7. Consent/Tender Offers........................................................ 43
6.8. Employee Benefits............................................................ 44
6.9. Indemnification; Directors' and Officers' Insurance.......................... 46
6.10. Other Actions by the Company................................................. 48
{/TABLE}
-i-
{PAGE}
{TABLE}
{CAPTION}
PAGE
{S} {C}
ARTICLE VII Conditions.............................................................. 50
7.1. Conditions to the Obligations of the Company, Cingular and Merger Sub to
Effect the Merger........................................................... 50
7.2. Conditions to Obligations of Cingular and Merger Sub......................... 51
7.3. Conditions to Obligation of the Company...................................... 53
ARTICLE VIII Termination............................................................ 53
8.1. Termination by Mutual Consent................................................ 53
8.2. Termination by Either Cingular or the Company................................ 53
8.3. Termination by the Company................................................... 54
8.4. Termination by Cingular...................................................... 54
8.5. Effect of Termination and Abandonment........................................ 55
ARTICLE IX Miscellaneous and General................................................ 56
9.1. Survival..................................................................... 56
9.2. Modification or Amendment.................................................... 56
9.3. Waiver of Conditions......................................................... 56
9.4. Counterparts................................................................. 56
9.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL................................ 56
9.6. Notices...................................................................... 57
9.7. Entire Agreement; NO OTHER REPRESENTATIONS................................... 59
9.8. No Third Party Beneficiaries................................................. 59
9.9. Obligations of Cingular and of the Company................................... 60
9.10. Definitions.................................................................. 60
9.11. Severability................................................................. 60
9.12. Interpretation; Construction................................................. 60
9.13. Guarantee; Breach............................................................ 61
9.14. Publicity.................................................................... 61
9.15. Expenses..................................................................... 61
9.16. Assignment................................................................... 61
{/TABLE}
-ii-
{PAGE}
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this "Agreement"),
dated as of February 17, 2004, by and among AT&T Wireless Services, Inc., a
Delaware corporation (the "Company"), Cingular Wireless Corporation, a Delaware
corporation ("Cingular"), Cingular Wireless LLC, a Delaware limited liability
company ("Cingular Wireless"), and Links I Corporation, a Delaware corporation
and a wholly-owned Subsidiary of Cingular ("Merger Sub", the Company and Merger
Sub sometimes being hereinafter collectively referred to as the "Constituent
Corporations") and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and
Article IX of this Agreement, SBC Communications Inc., a Delaware corporation
("SBC") and BellSouth Corporation, a Georgia corporation ("BellSouth").
RECITALS
WHEREAS, the board of directors ("Board of Directors") of each of
Cingular, Merger Sub and the Company has determined that the merger of Merger
Sub with and into the Company (the "Merger") upon the terms and subject to the
conditions set forth in this Agreement is advisable and by resolutions duly
adopted, has approved and adopted this Agreement; and
WHEREAS, the Company, Cingular Wireless, Cingular, Merger Sub, SBC
and BellSouth desire to make those representations, warranties, covenants and
agreements specified herein in connection with this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein,
Cingular, Cingular Wireless, Merger Sub, the Company and, solely with respect to
Sections 5.3, 6.1(b), 6.5(b) and Article IX of this Agreement, SBC and BellSouth
agree as follows:
ARTICLE I
The Merger; Closing; Effective Time
1.1. The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, at the Effective Time, Merger Sub shall be merged with
and into the Company and the separate corporate existence of Merger Sub shall
thereupon cease. The Company shall be the surviving corporation in the Merger
(sometimes hereinafter referred to as the "Surviving Corporation"), and the
separate corporate existence of the Company with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the Merger,
except as set forth in Article II of this Agreement. The Merger
{PAGE}
shall have the effects specified in the Delaware General Corporation Law, as
amended (the "DGCL").
1.2. Closing. Unless otherwise mutually agreed in writing between
the Company and Cingular, the closing for the Merger (the "Closing") shall take
place (i) at the offices of Fried, Frank, Harris, Shriver & Jacobson LLP, One
New York Plaza, New York, New York 10004, at 9:00 A.M. local time on the fifth
business day (the "Closing Date") following the day on which the last to be
satisfied or waived of the conditions set forth in Article VII (other than those
conditions that by their nature are to be satisfied at the Closing, but subject
to the satisfaction or waiver of those conditions) shall be satisfied or waived
in accordance with this Agreement.
1.3. Effective Time. As soon as practicable following the Closing,
the Company and Cingular will cause a Certificate of Merger (the "Delaware
Certificate of Merger") to be executed, acknowledged and filed with the
Secretary of State of the State of Delaware as provided in Section 251 of the
DGCL. The Merger shall become effective at the time when the Delaware
Certificate of Merger has been duly filed with the Secretary of State of the
State of Delaware or at such later time as may be agreed by the parties in
writing and specified in the Delaware Certificate of Merger (the "Effective
Time").
ARTICLE II
Certificate of Incorporation and By-Laws
of the Surviving Corporation
2.1. The Certificate of Incorporation. At the Effective Time, the
certificate of incorporation of the Surviving Corporation (the "Charter") shall
be amended in its entirety to read as set forth in Exhibit A hereto, until
thereafter amended as provided therein or by applicable Law.
2.2. The By-Laws. The by-laws of Merger Sub in effect at the
Effective Time shall be the by-laws of the Surviving Corporation (the
"By-Laws"), until thereafter amended as provided therein or by applicable Law.
ARTICLE III
Officers and Directors
of the Surviving Corporation
3.1. Directors. The directors of Merger Sub at the Effective Time
shall, from and after the Effective Time, be the directors of the Surviving
Corporation until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Charter and the By-Laws.
- 2 -
{PAGE}
3.2. Officers. The officers of Merger Sub at the Effective Time
shall, from and after the Effective Time, be the officers of the Surviving
Corporation until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Charter and the By-Laws.
ARTICLE IV
Effect of the Merger on Capital Stock;
Exchange of Certificates
4.1. Effect on Capital Stock. At the Effective Time, as a result of
the Merger and without any action on the part of the holder of any capital stock
of the Company:
(a) Merger Consideration. Each share of the Common Stock, par value
$0.01 per share, of the Company (the "Common Stock") issued and outstanding
immediately prior to the Effective Time (other than shares of Common Stock (i)
owned by Cingular or any direct or indirect Subsidiary of Cingular
(collectively, the "Cingular Companies"), (ii) owned by the Company or any
direct or indirect Subsidiary of the Company, except, in the case of each of
clauses (i) and (ii), for any such shares held on behalf of third parties, or
(iii) shares of Common Stock (the "Dissenting Common Shares") that are owned by
stockholders (the "Dissenting Common Stockholders") properly exercising
appraisal rights pursuant to Section 262 of the DGCL (each, an "Excluded Common
Share" and collectively, "Excluded Common Shares")) shall be converted into the
right to receive $15.00 in cash (the "Common Stock Merger Consideration"). At
the Effective Time, all shares of Common Stock shall no longer be outstanding
and shares of Common Stock shall be cancelled and retired and shall cease to
exist, and each certificate (a "Common Stock Certificate") formerly
representing any such shares of Common Stock (other than Excluded Common
Shares) shall thereafter represent only the right to the Common Stock Merger
Consideration and any Dissenting Common Shares shall thereafter represent only
the right to receive the applicable payments set forth in Section 4.3.
(b) Preferred Stock. At the Effective Time, each share of Series C
preferred stock, par value $0.01 per share, of the Company (the "Series C
Preferred Stock") and each share of Series E preferred stock, par value $0.01
per share, of the Company (the "Series E Preferred Stock" and together with the
Series C Preferred Stock, the "Preferred Stock"; and the Preferred Stock
together with the Common Stock, the "Shares"), issued and outstanding
immediately prior to the Effective Time other than
- 3 -
{PAGE}
shares of Preferred Stock (the "Dissenting Preferred Shares" and together with
Dissenting Common Shares, "Dissenting Shares") that are held by stockholders
(the "Dissenting Preferred Stockholders" and together with the Dissenting Common
311059
|
AT&T Wireless
As referenced in this Agreement and Plan of Merger:
AT&T WIRELESS SERVICES, – 3
{FILENAME}e94336exv99w1.txt
{DESCRIPTION}AGREEMENT AND PLAN OF MERGER
{TEXT}
{PAGE}
Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b),
_____________
AT&T Wireless Services, – AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this "Agreement"),
dated as of February 17, 2004, by and among AT&T Wireless Services, Inc., a
Delaware corporation (the "Company"), Cingular Wireless Corporation, a Delaware
corporation ("Cingular"), Cingular Wireless LLC, a Delaware limited liability
company ("Cingular
_____________
AT&T Wireless Services, – Jacobson LLP
One New York Plaza, New York, NY 10004
Attention: Gail L. Weinstein, Esq.
Fax: (212) 859-4000
if to the Company
AT&T Wireless Services, Inc.
7277 164th Avenue NE
Building 1
Redmond, WA 98052
Attention: Gregory P. Landis, General Counsel
Fax: (425) 580-8505
with a
_____________
AT&T WIRELESS SERVICES, – Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
AT&T WIRELESS SERVICES, INC.
By: /s/ John Zeglis
--------------------------------------
Name: John Zeglis
Title: CEO
CINGULAR WIRELESS CORPORATION
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
_____________
dt 340997
;
AT&T
As referenced in this Agreement and Plan of Merger:
AT&T Corp – 2000 (the "DoCoMo Warrant Agreement"), by and among the Company,
NTT DoCoMo, Inc., a corporation organized under the laws of Japan ("DoCoMo") and
AT&T Corp ., a New York corporation ("Former Parent") shall only entitle the
holder thereof to receive upon exercise thereof and payment of the exercise
_____________
dt 303908
;
|
Cingular
As referenced in this Agreement and Plan of Merger:
CINGULAR WIRELESS CORP – AGREEMENT AND PLAN OF MERGER
{TEXT}
{PAGE}
Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORP ORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and
_____________
Cingular Wireless Corp – hereinafter called this "Agreement"),
dated as of February 17, 2004, by and among AT&T Wireless Services, Inc., a
Delaware corporation (the "Company"), Cingular Wireless Corp oration, a Delaware
corporation ("Cingular"), Cingular Wireless LLC, a Delaware limited liability
company ("Cingular Wireless"), and Links I Corporation, a Delaware corporation
and
_____________
Cingular Wireless Corp – personally or sent by registered or certified mail, postage prepaid, facsimile
or by overnight courier:
if to Cingular, Cingular Wireless or Merger Sub:
Cingular Wireless Corp oration
5565 Glenridge Connection
Suite 1100
Atlanta, Georgia 30342
Attention: Joaquin Carbonell, Esq.
Fax: (404) 249-4488
with copies to:
SBC Communications Inc.
_____________
CINGULAR WIRELESS CORP – parties hereto as of the date
first written above.
AT&T WIRELESS SERVICES, INC.
By: /s/ John Zeglis
--------------------------------------
Name: John Zeglis
Title: CEO
CINGULAR WIRELESS CORP ORATION
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
CINGULAR WIRELESS LLC
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
LINKS
_____________
dt 312410
;
Cingular
As referenced in this Agreement and Plan of Merger:
CINGULAR WIRELESS LLC
– OF MERGER
{TEXT}
{PAGE}
Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX
of
_____________
Cingular Wireless LLC, – February 17, 2004, by and among AT&T Wireless Services, Inc., a
Delaware corporation (the "Company"), Cingular Wireless Corporation, a Delaware
corporation ("Cingular"), Cingular Wireless LLC, a Delaware limited liability
company ("Cingular Wireless"), and Links I Corporation, a Delaware corporation
and a wholly-owned Subsidiary of Cingular ("Merger
_____________
CINGULAR WIRELESS LLC
– SERVICES, INC.
By: /s/ John Zeglis
--------------------------------------
Name: John Zeglis
Title: CEO
CINGULAR WIRELESS CORPORATION
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
CINGULAR WIRELESS LLC
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
LINKS I CORPORATION
By: /s/ Rick Moore
--------------------------------------
Name: Rick Moore
Title: Authorized Officer
-
_____________
dt 321402
;
More... |
Preview
Full Doc
| 2004 |
Agreement and Plan of Merger
Agreement and Plan of Merger (230K)
Doc #311060: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX
of the Agreement and Plan of Merger,
SBC COMMUNICATIONS INC.
and
BELLSOUTH CORPORATION
Dated as of February 17, 2004
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
PAGE
{S} {C}
ARTICLE I The Merger; Closing; Effective Time....................................... 1
1.1. The Merger................................................................... 1
1.2. Closing...................................................................... 2
1.3. Effective Time............................................................... 2
ARTICLE II Certificate of Incorporation and By-Laws of the Surviving Corporation.... 2
2.1. The Certificate of Incorporation............................................. 2
2.2. The By-Laws.................................................................. 2
ARTICLE III Officers and Directors of the Surviving Corporation..................... 2
3.1. Directors.................................................................... 2
3.2. Officers..................................................................... 3
ARTICLE IV Effect of the Merger on Capital Stock; Exchange of Certificates.......... 3
4.1. Effect on Capital Stock...................................................... 3
4.2. Exchange of Certificates for Shares.......................................... 4
4.3. Dissenters' Rights........................................................... 6
4.4. Adjustments to Prevent Dilution.............................................. 6
4.5. Treatment of Company Options/Other Equity Awards............................. 6
4.6. Treatment of DoCoMo Warrant.................................................. 7
ARTICLE V Representations and Warranties............................................ 8
5.1. Representations and Warranties of the Company................................ 8
5.2. Representations and Warranties of Cingular and Merger Sub.................... 28
5.3. Representations and Warranties of SBC and BellSouth.......................... 31
ARTICLE VI Covenants 33
6.1. Interim Operations........................................................... 33
6.2. Acquisition Proposals........................................................ 38
6.3. Information Supplied......................................................... 39
6.4. Stockholders Meeting......................................................... 40
6.5. Filings; Other Actions; Notification......................................... 40
6.6. Access....................................................................... 42
6.7. Consent/Tender Offers........................................................ 43
6.8. Employee Benefits............................................................ 44
6.9. Indemnification; Directors' and Officers' Insurance.......................... 46
6.10. Other Actions by the Company................................................. 48
{/TABLE}
-i-
{PAGE}
{TABLE}
{CAPTION}
PAGE
{S} {C}
ARTICLE VII Conditions.............................................................. 50
7.1. Conditions to the Obligations of the Company, Cingular and Merger Sub to
Effect the Merger........................................................... 50
7.2. Conditions to Obligations of Cingular and Merger Sub......................... 51
7.3. Conditions to Obligation of the Company...................................... 53
ARTICLE VIII Termination............................................................ 53
8.1. Termination by Mutual Consent................................................ 53
8.2. Termination by Either Cingular or the Company................................ 53
8.3. Termination by the Company................................................... 54
8.4. Termination by Cingular...................................................... 54
8.5. Effect of Termination and Abandonment........................................ 55
ARTICLE IX Miscellaneous and General................................................ 56
9.1. Survival..................................................................... 56
9.2. Modification or Amendment.................................................... 56
9.3. Waiver of Conditions......................................................... 56
9.4. Counterparts................................................................. 56
9.5. GOVERNING LAW AND VENUE; WAIVER OF JURY TRIAL................................ 56
9.6. Notices...................................................................... 57
9.7. Entire Agreement; NO OTHER REPRESENTATIONS................................... 59
9.8. No Third Party Beneficiaries................................................. 59
9.9. Obligations of Cingular and of the Company................................... 60
9.10. Definitions.................................................................. 60
9.11. Severability................................................................. 60
9.12. Interpretation; Construction................................................. 60
9.13. Guarantee; Breach............................................................ 61
9.14. Publicity.................................................................... 61
9.15. Expenses..................................................................... 61
9.16. Assignment................................................................... 61
{/TABLE}
-ii-
{PAGE}
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this "Agreement"),
dated as of February 17, 2004, by and among AT&T Wireless Services, Inc., a
Delaware corporation (the "Company"), Cingular Wireless Corporation, a Delaware
corporation ("Cingular"), Cingular Wireless LLC, a Delaware limited liability
company ("Cingular Wireless"), and Links I Corporation, a Delaware corporation
and a wholly-owned Subsidiary of Cingular ("Merger Sub", the Company and Merger
Sub sometimes being hereinafter collectively referred to as the "Constituent
Corporations") and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and
Article IX of this Agreement, SBC Communications Inc., a Delaware corporation
("SBC") and BellSouth Corporation, a Georgia corporation ("BellSouth").
RECITALS
WHEREAS, the board of directors ("Board of Directors") of each of
Cingular, Merger Sub and the Company has determined that the merger of Merger
Sub with and into the Company (the "Merger") upon the terms and subject to the
conditions set forth in this Agreement is advisable and by resolutions duly
adopted, has approved and adopted this Agreement; and
WHEREAS, the Company, Cingular Wireless, Cingular, Merger Sub, SBC
and BellSouth desire to make those representations, warranties, covenants and
agreements specified herein in connection with this Agreement.
NOW, THEREFORE, in consideration of the premises, and of the
representations, warranties, covenants and agreements contained herein,
Cingular, Cingular Wireless, Merger Sub, the Company and, solely with respect to
Sections 5.3, 6.1(b), 6.5(b) and Article IX of this Agreement, SBC and BellSouth
agree as follows:
ARTICLE I
The Merger; Closing; Effective Time
1.1. The Merger. Upon the terms and subject to the conditions set
forth in this Agreement, at the Effective Time, Merger Sub shall be merged with
and into the Company and the separate corporate existence of Merger Sub shall
thereupon cease. The Company shall be the surviving corporation in the Merger
(sometimes hereinafter referred to as the "Surviving Corporation"), and the
separate corporate existence of the Company with all its rights, privileges,
immunities, powers and franchises shall continue unaffected by the Merger,
except as set forth in Article II of this Agreement. The Merger
{PAGE}
shall have the effects specified in the Delaware General Corporation Law, as
amended (the "DGCL").
1.2. Closing. Unless otherwise mutually agreed in writing between
the Company and Cingular, the closing for the Merger (the "Closing") shall take
place (i) at the offices of Fried, Frank, Harris, Shriver & Jacobson LLP, One
New York Plaza, New York, New York 10004, at 9:00 A.M. local time on the fifth
business day (the "Closing Date") following the day on which the last to be
satisfied or waived of the conditions set forth in Article VII (other than those
conditions that by their nature are to be satisfied at the Closing, but subject
to the satisfaction or waiver of those conditions) shall be satisfied or waived
in accordance with this Agreement.
1.3. Effective Time. As soon as practicable following the Closing,
the Company and Cingular will cause a Certificate of Merger (the "Delaware
Certificate of Merger") to be executed, acknowledged and filed with the
Secretary of State of the State of Delaware as provided in Section 251 of the
DGCL. The Merger shall become effective at the time when the Delaware
Certificate of Merger has been duly filed with the Secretary of State of the
State of Delaware or at such later time as may be agreed by the parties in
writing and specified in the Delaware Certificate of Merger (the "Effective
Time").
ARTICLE II
Certificate of Incorporation and By-Laws
of the Surviving Corporation
2.1. The Certificate of Incorporation. At the Effective Time, the
certificate of incorporation of the Surviving Corporation (the "Charter") shall
be amended in its entirety to read as set forth in Exhibit A hereto, until
thereafter amended as provided therein or by applicable Law.
2.2. The By-Laws. The by-laws of Merger Sub in effect at the
Effective Time shall be the by-laws of the Surviving Corporation (the
"By-Laws"), until thereafter amended as provided therein or by applicable Law.
ARTICLE III
Officers and Directors
of the Surviving Corporation
3.1. Directors. The directors of Merger Sub at the Effective Time
shall, from and after the Effective Time, be the directors of the Surviving
Corporation until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Charter and the By-Laws.
- 2 -
{PAGE}
3.2. Officers. The officers of Merger Sub at the Effective Time
shall, from and after the Effective Time, be the officers of the Surviving
Corporation until their successors have been duly elected or appointed and
qualified or until their earlier death, resignation or removal in accordance
with the Charter and the By-Laws.
ARTICLE IV
Effect of the Merger on Capital Stock;
Exchange of Certificates
4.1. Effect on Capital Stock. At the Effective Time, as a result of
the Merger and without any action on the part of the holder of any capital stock
of the Company:
(a) Merger Consideration. Each share of the Common Stock, par value
$0.01 per share, of the Company (the "Common Stock") issued and outstanding
immediately prior to the Effective Time (other than shares of Common Stock (i)
owned by Cingular or any direct or indirect Subsidiary of Cingular
(collectively, the "Cingular Companies"), (ii) owned by the Company or any
direct or indirect Subsidiary of the Company, except, in the case of each of
clauses (i) and (ii), for any such shares held on behalf of third parties, or
(iii) shares of Common Stock (the "Dissenting Common Shares") that are owned by
stockholders (the "Dissenting Common Stockholders") properly exercising
appraisal rights pursuant to Section 262 of the DGCL (each, an "Excluded Common
Share" and collectively, "Excluded Common Shares")) shall be converted into the
right to receive $15.00 in cash (the "Common Stock Merger Consideration"). If
the Closing shall not have occurred on or prior to December 16, 2004, the Common
Stock Merger Consideration shall be increased by an amount of simple interest at
a rate of 4% per annum based on a year of 365 days from and after December 16,
2004 to the day preceding the Effective Time, and the Common Stock Merger
Consideration shall be an amount equal to $15.00 as increased pursuant to this
sentence.At the Effective Time, all shares of Common Stock shall no longer be
outstanding and shares of Common Stock shall be cancelled and retired and shall
cease to exist, and each certificate (a "Common Stock Certificate") formerly
representing any such shares of Common Stock (other than Excluded Common Shares)
shall thereafter represent only the right to the Common Stock Merger
Consideration and any Dissenting Common Shares shall thereafter represent only
the right to receive the applicable payments set forth in Section 4.3.
(b) Preferred Stock. At the Effective Time, each share of Series C
preferred stock, par value $0.01 per share, of the Company (the "Series C
Preferred Stock") and each share of Series E preferred stock, par value $0.01
per share, of the Company (the "Series E Preferred Stock" and together with the
Series C Preferred Stock, the "Preferred Stock"; and the Preferred Stock
311060
|
AT&T Wireless
As referenced in this Agreement and Plan of Merger:
AT&T WIRELESS SERVICES, – 3
{FILENAME}y94336exv99w1.txt
{DESCRIPTION}AGREEMENT AND PLAN OF MERGER
{TEXT}
{PAGE}
Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b),
_____________
AT&T Wireless Services, – AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (hereinafter called this "Agreement"),
dated as of February 17, 2004, by and among AT&T Wireless Services, Inc., a
Delaware corporation (the "Company"), Cingular Wireless Corporation, a Delaware
corporation ("Cingular"), Cingular Wireless LLC, a Delaware limited liability
company ("Cingular
_____________
AT&T Wireless Services, – Jacobson LLP
One New York Plaza, New York, NY 10004
Attention: Gail L. Weinstein, Esq.
Fax: (212) 859-4000
if to the Company
AT&T Wireless Services, Inc.
7277 164th Avenue NE
Building 1
Redmond, WA 98052
Attention: Gregory P. Landis, General Counsel
Fax: (425) 580-8505
with a
_____________
AT&T WIRELESS SERVICES, – Agreement has been duly executed and
delivered by the duly authorized officers of the parties hereto as of the date
first written above.
AT&T WIRELESS SERVICES, INC.
By: /s/ John Zeglis
--------------------------------------
Name: John Zeglis
Title: CEO
CINGULAR WIRELESS CORPORATION
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
_____________
dt 340998
;
AT&T
As referenced in this Agreement and Plan of Merger:
AT&T Corp – 2000 (the "DoCoMo Warrant Agreement"), by and among the Company,
NTT DoCoMo, Inc., a corporation organized under the laws of Japan ("DoCoMo") and
AT&T Corp ., a New York corporation ("Former Parent") shall only entitle the
holder thereof to receive upon exercise thereof and payment of the exercise
_____________
dt 303911
;
|
Cingular
As referenced in this Agreement and Plan of Merger:
CINGULAR WIRELESS CORP – AGREEMENT AND PLAN OF MERGER
{TEXT}
{PAGE}
Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORP ORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and
_____________
Cingular Wireless Corp – hereinafter called this "Agreement"),
dated as of February 17, 2004, by and among AT&T Wireless Services, Inc., a
Delaware corporation (the "Company"), Cingular Wireless Corp oration, a Delaware
corporation ("Cingular"), Cingular Wireless LLC, a Delaware limited liability
company ("Cingular Wireless"), and Links I Corporation, a Delaware corporation
and
_____________
Cingular Wireless Corp – personally or sent by registered or certified mail, postage prepaid, facsimile
or by overnight courier:
if to Cingular, Cingular Wireless or Merger Sub:
Cingular Wireless Corp oration
5565 Glenridge Connection
Suite 1100
Atlanta, Georgia 30342
Attention: Joaquin Carbonell, Esq.
Fax: (404) 249-4488
with copies to:
SBC Communications Inc.
_____________
CINGULAR WIRELESS CORP – parties hereto as of the date
first written above.
AT&T WIRELESS SERVICES, INC.
By: /s/ John Zeglis
--------------------------------------
Name: John Zeglis
Title: CEO
CINGULAR WIRELESS CORP ORATION
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
CINGULAR WIRELESS LLC
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
LINKS
_____________
dt 312411
;
Cingular
As referenced in this Agreement and Plan of Merger:
CINGULAR WIRELESS LLC
– OF MERGER
{TEXT}
{PAGE}
Exhibit 99.1
AGREEMENT AND PLAN OF MERGER
By and Among
AT&T WIRELESS SERVICES, INC.,
CINGULAR WIRELESS CORPORATION,
CINGULAR WIRELESS LLC
and
LINKS I CORPORATION
and, solely with respect to Sections 5.3, 6.1(b), 6.5(b) and Article IX
of
_____________
Cingular Wireless LLC, – February 17, 2004, by and among AT&T Wireless Services, Inc., a
Delaware corporation (the "Company"), Cingular Wireless Corporation, a Delaware
corporation ("Cingular"), Cingular Wireless LLC, a Delaware limited liability
company ("Cingular Wireless"), and Links I Corporation, a Delaware corporation
and a wholly-owned Subsidiary of Cingular ("Merger
_____________
CINGULAR WIRELESS LLC
– SERVICES, INC.
By: /s/ John Zeglis
--------------------------------------
Name: John Zeglis
Title: CEO
CINGULAR WIRELESS CORPORATION
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
CINGULAR WIRELESS LLC
By: /s/ Stan Sigman
--------------------------------------
Name: Stan Sigman
Title: CEO
LINKS I CORPORATION
By: /s/ Rick Moore
--------------------------------------
Name: Rick Moore
Title: Authorized Officer
-
_____________
dt 321403
;
More... |
Preview
Full Doc
| 2001 |
Agreement and Plan of Merger
Agreement and Plan of Merger (362K)
Doc #318093: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
dated as of
December 19, 2001
by and among
AT&T CORP.,
AT&T BROADBAND CORP.,
COMCAST CORPORATION,
AT&T BROADBAND ACQUISITION CORP.,
COMCAST ACQUISITION CORP.
and
AT&T COMCAST CORPORATION
{PAGE}
TABLE OF CONTENTS
----------------------
PAGE
----
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions....................................................2
ARTICLE 2
PARENT AND MERGER SUBS
SECTION 2.01. Organization of Parent........................................24
SECTION 2.02. Directors and Officers of Parent..............................24
SECTION 2.03. Organization of Merger Subs...................................24
SECTION 2.04. Actions of Comcast and AT&T...................................24
SECTION 2.05. Rights Plan...................................................25
ARTICLE 3
THE MERGERS
SECTION 3.01. The AT&T Broadband Merger.....................................25
SECTION 3.02. The Comcast Merger............................................25
SECTION 3.03. Certificate and Articles of Incorporation; Bylaws.............26
SECTION 3.04. Directors and Officers of the Surviving Corporations..........26
SECTION 3.05. Alternative Structure.........................................27
ARTICLE 4
CONVERSION OF SECURITIES
SECTION 4.01. Conversion of Securities......................................27
SECTION 4.02. Exchange of Certificates......................................31
SECTION 4.03. Section 355(e) Top-up.........................................39
SECTION 4.04. Additional Payment............................................40
SECTION 4.05. Additional Exchange Arrangements..............................41
ARTICLE 5
REPRESENTATIONS AND WARRANTIES OF COMCAST
SECTION 5.01. Corporate Existence and Power.................................42
SECTION 5.02. Corporate Authorization.......................................42
SECTION 5.03. Governmental Authorization....................................42
SECTION 5.04. Non-contravention.............................................43
{PAGE}
PAGE
----
SECTION 5.05. Capitalization................................................43
SECTION 5.06. Subsidiaries..................................................44
SECTION 5.07. SEC Filings...................................................45
SECTION 5.08. Financial Statements..........................................46
SECTION 5.09. Information Supplied..........................................46
SECTION 5.10. Absence of Certain Changes....................................46
SECTION 5.11. No Undisclosed Material Liabilities...........................47
SECTION 5.12. Compliance with Laws and Court Orders.........................47
SECTION 5.13. Litigation....................................................47
SECTION 5.14. Finders' Fees.................................................48
SECTION 5.15. Opinion of Financial Advisor..................................48
SECTION 5.16. Taxes.........................................................48
SECTION 5.17. Tax Opinions..................................................49
SECTION 5.18. Employee Benefit Plans and Labor Matters......................49
SECTION 5.19. Environmental Matters.........................................52
SECTION 5.20. Intellectual Property.........................................52
SECTION 5.21. Contracts.....................................................53
SECTION 5.22. Vote Required.................................................54
SECTION 5.23. Antitakeover Statutes; Charter and Bylaw Provisions...........54
SECTION 5.24. AT&T Securities...............................................54
SECTION 5.25. Transactions with Affiliates..................................54
SECTION 5.26. Investments...................................................54
SECTION 5.27. No Approval Rights............................................55
ARTICLE 6
REPRESENTATIONS AND WARRANTIES OF AT&T
SECTION 6.01. Corporate Existence and Power.................................55
SECTION 6.02. Corporate Authorization.......................................55
SECTION 6.03. Governmental Authorization....................................56
SECTION 6.04. Non-contravention.............................................57
SECTION 6.05. Capitalization................................................57
SECTION 6.06. AT&T Broadband and AT&T Broadband Subsidiaries................59
SECTION 6.07. SEC Filings...................................................60
SECTION 6.08. Financial Statements..........................................61
SECTION 6.09. Information Supplied..........................................61
SECTION 6.10. Absence of Certain Changes....................................62
SECTION 6.11. No Undisclosed Material Liabilities...........................62
SECTION 6.12. Compliance with Laws and Court Orders.........................63
SECTION 6.13. Litigation....................................................63
SECTION 6.14. Finders' Fees.................................................63
SECTION 6.15. Opinion of Financial Advisor..................................64
ii
{PAGE}
PAGE
----
SECTION 6.16. Taxes.........................................................64
SECTION 6.17. Tax Opinions..................................................65
SECTION 6.18. Employee Benefit Plans and Labor Matters......................65
SECTION 6.19. Environmental Matters.........................................67
SECTION 6.20. Intellectual Property.........................................68
SECTION 6.21. Contracts.....................................................69
SECTION 6.22. AT&T Shareholder Vote.........................................70
SECTION 6.23. Antitakeover Statutes.........................................70
SECTION 6.24. Comcast Securities............................................70
SECTION 6.25. TWE; At Home..................................................70
SECTION 6.26. Intercompany Transactions.....................................72
SECTION 6.27. Sufficiency of Transferred Assets.............................72
SECTION 6.28. Investments...................................................73
ARTICLE 7
COVENANTS OF COMCAST
SECTION 7.01. Comcast Interim Operations....................................73
SECTION 7.02. Comcast Shareholders' Meeting; Proxy Material.................77
SECTION 7.03. Voting Agreement..............................................78
ARTICLE 8
COVENANTS OF AT&T
SECTION 8.01. AT&T Broadband Interim Operations.............................78
SECTION 8.02. AT&T Shareholders' Meeting; Proxy Material....................85
SECTION 8.03. No Solicitation...............................................86
SECTION 8.04. Ancillary Agreements..........................................88
SECTION 8.05. Neutrality Agreement..........................................89
SECTION 8.06. Broadband Employees...........................................89
SECTION 8.07. AT&T Post-Signing Equity Awards...............................90
SECTION 8.08. Redemption of TCI Pacific Preferred Stock.....................90
SECTION 8.09. Note Consent Process..........................................90
ARTICLE 9
COVENANTS OF AT&T, COMCAST AND PARENT
SECTION 9.01. Best Efforts..................................................91
SECTION 9.02. Joint Proxy Statement; Registration Statement.................92
SECTION 9.03. Public Announcements..........................................93
SECTION 9.04. Further Assurances............................................93
SECTION 9.05. Access to Information.........................................94
iii
{PAGE}
PAGE
----
SECTION 9.06. Tax-free Transactions.........................................94
SECTION 9.07. Affiliates....................................................94
SECTION 9.08. Governance and Other Matters..................................95
SECTION 9.09. Notices of Certain Events.....................................95
SECTION 9.10. Section 16 Matters............................................96
SECTION 9.11. Director and Officer Liability................................96
SECTION 9.12. Listing of Stock..............................................97
SECTION 9.13. Employee Matters..............................................98
SECTION 9.14. Employment Agreements........................................100
SECTION 9.15. Interim Finance Committee....................................100
SECTION 9.16. TOPRS........................................................101
SECTION 9.17. Consideration................................................102
SECTION 9.18. QUIPS........................................................102
SECTION 9.19. Index Stock..................................................105
SECTION 9.20. Use of Name and Logo.........................................105
SECTION 9.21. Exchange Agreement...........................................106
SECTION 9.22. Significant Excepted Transactions............................107
SECTION 9.23. Comcast's AT&T Stock.........................................108
ARTICLE 10
CONDITIONS TO THE MERGERS
SECTION 10.01. Conditions to the Obligations of Each Party..................109
SECTION 10.02. Conditions to the Obligations of AT&T........................111
SECTION 10.03. Conditions to the Obligations of Comcast.....................112
ARTICLE 11
TERMINATION
SECTION 11.01. Termination..................................................113
SECTION 11.02. Effect of Termination........................................114
SECTION 11.03. Fees and Expenses............................................115
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Notices......................................................117
SECTION 12.02. Survival.....................................................118
SECTION 12.03. Amendments; No Waivers.......................................119
SECTION 12.04. Successors and Assigns.......................................119
SECTION 12.05. Governing Law................................................119
SECTION 12.06. Jurisdiction.................................................119
iv
{PAGE}
SECTION 12.07. WAIVER OF JURY TRIAL.........................................120
SECTION 12.08. Counterparts; Effectiveness..................................120
SECTION 12.09. Entire Agreement; No Third Party Beneficiaries...............120
SECTION 12.10. Severability.................................................120
SECTION 12.11. Specific Performance.........................................121
SECTION 12.12. Schedules....................................................121
EXHIBITS AND SCHEDULES
Exhibit A - Form of Support Agreement
Exhibit B - Form of Rule 145 Affiliate Letter
Exhibit C - Form of Separation and Distribution Agreement
Exhibit D-1 - Form of Parent Charter (Preferred Structure)
Exhibit D-2 - Term Sheet for Parent Charter (Alternative Structure)
Exhibit D-3 - Form of Parent Bylaws
Exhibit D-4 - Form of Comcast Articles Amendment
Exhibit E - AT&T Broadband Financial Statements (12/31/00 and 9/30/01)
Exhibit F - Admission Agreement
AT&T Disclosure Schedule
Comcast Disclosure Schedule
{PAGE}
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of December 19,
2001, by and among AT&T Corp., a New York corporation ("AT&T"), AT&T Broadband
Corp., a Delaware corporation and a wholly owned subsidiary of AT&T ("AT&T
Broadband"), Comcast Corporation, a Pennsylvania corporation ("Comcast"), AT&T
Comcast Corporation, a Pennsylvania corporation ("Parent"), AT&T Broadband
Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("AT&T Broadband Merger Sub"), and Comcast Acquisition Corp., a
Pennsylvania corporation and a wholly owned subsidiary of Parent ("Comcast
Merger Sub").
WHEREAS, AT&T Broadband is a newly formed wholly owned subsidiary of AT&T
that will hold, directly or indirectly, all of the assets and liabilities of
the AT&T Broadband Group in accordance with the terms and conditions of the
Separation and Distribution Agreement (as defined below);
WHEREAS, the Boards of Directors of AT&T, AT&T Broadband and Comcast and
each of the other parties hereto have approved this Agreement and deem it
advisable and in the best interests of their respective shareholders to
consummate the transactions contemplated hereby on the terms and conditions set
forth herein;
WHEREAS, immediately prior to the execution and delivery of this
Agreement, as a condition and inducement to AT&T's willingness to enter into
this Agreement, each of Sural LLC ("Comcast Shareholder"), Mr. Brian L.
Roberts, Comcast and Parent has executed and delivered to AT&T the support
agreement, dated as of the date hereof, in the form attached as Exhibit A (the
"Support Agreement");
WHEREAS, it is intended that, for United States federal income tax
purposes, the Mergers (as defined below) shall qualify as tax-free exchanges
described in Section 351 of the Internal Revenue Code of 1986, as amended (the
"Code"), and the rules and regulations promulgated thereunder;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth below, the
parties hereto agree as follows:
{PAGE}
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. (a) The following terms, as used herein, have
the following meanings:
"1933 Act" means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.
"1934 Act" means the Securities Exchange Act of 1934, as amended, and the
rules and regulations promulgated thereunder.
"A Shareholder Approval" means the approval, by a majority of the votes
cast, of the holders of the Comcast Class A Common Stock (voting as a class at
a meeting at which a quorum is present) of this Agreement and the transactions
contemplated by this Agreement and the Articles Amendment.
"Additional Commercial Agreements" has the meaning set forth in the
Separation and Distribution Agreement.
318093
|
AT&T Wireless
As referenced in this Agreement and Plan of Merger:
AT&T Wireless Services, – the Code and (z) the Separation and Distribution will not cause
the distribution by AT&T of all of the common stock of AT&T Wireless Services,
Inc. or of Liberty Media Corporation to fail to qualify as tax- free
transactions pursuant to Sections 355 and 368(a) of
_____________
dt 606048
;
AT&T
As referenced in this Agreement and Plan of Merger:
AT&T CORP – AGREEMENT AND PLAN OF MERGER
{TEXT}
EXHIBIT 2.1
-----------
AGREEMENT AND PLAN OF MERGER
dated as of
December 19, 2001
by and among
AT&T CORP .,
AT&T BROADBAND CORP.,
COMCAST CORPORATION,
AT&T BROADBAND ACQUISITION CORP.,
COMCAST ACQUISITION CORP.
and
AT&T COMCAST CORPORATION
{PAGE}
TABLE OF
_____________
AT&T Corp – Schedule
{PAGE}
AGREEMENT AND PLAN OF MERGER
AGREEMENT AND PLAN OF MERGER (this "Agreement"), dated as of December 19,
2001, by and among AT&T Corp ., a New York corporation ("AT&T"), AT&T Broadband
Corp., a Delaware corporation and a wholly owned subsidiary of AT&T ("AT&
_____________
AT&T Corp – communications to
any party hereto shall be in writing (including facsimile transmission) and
shall be given,
if to AT&T, to:
117
{PAGE}
AT&T Corp .
295 North Maple Avenue
Basking Ridge, New Jersey 07920
Attention: Marilyn J. Wasser
Fax: (908) 953-8360
with a copy to:
Wachtell,
_____________
AT&T CORP – hereto have caused this Agreement to be
duly executed by their respective authorized officers as of the day and year
first above written.
AT&T CORP .
By: /s/ C. Michael Armstrong
-----------------------------------
Name: C. Michael Armstrong
Title: Chairman and Chief
Executive Officer
AT&T BROADBAND CORP.
By: /s/ Raymond
_____________
dt 630012
;
Time Warner
As referenced in this Agreement and Plan of Merger:
Time Warner Inc – exercise price of such AT&T Options.
"Ancillary Agreements" has the meaning set forth in the Separation and
Distribution Agreement.
"AOL" means AOL Time Warner Inc ., a Delaware corporation.
"Articles Amendment" mean the articles of amendment to the articles of
incorporation of Comcast in the form attached as
_____________
dt 632873
;
|
IBEW
As referenced in this Agreement and Plan of Merger:
International Brotherhood of
Electrical Workers, – renew, extend or modify the Neutrality and
Consent Election Agreement (the "Neutrality Agreement") among AT&T, the
Communications Workers of America and the International Brotherhood of
Electrical Workers, such that such agreement, as so renewed, extended or
modified, will apply to or otherwise bind or purport to apply to or
_____________
dt 548047
;
BNY
As referenced in this Agreement and Plan of Merger:
Bank of New York, – of the Communications Act).
"Guarantee Agreement" means the Guarantee Agreement dated as of June 16,
1999 between AT&T, as Guarantor, and The Bank of New York, as Guarantor
Trustee, relating to the Issuer Trust.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended,
_____________
Bank of New York, – Separation and
Distribution Agreement.
"Indenture" means the Indenture dated as of June 16, 1999, as amended or
supplemented, between AT&T and The Bank of New York, as Trustee, relating to
the Debentures.
"Independent Person" has the meaning set forth in the Parent Charter.
"Index" means the Standard and
_____________
Bank of New York, – series.
"Notes Indenture" means the Indenture dated as of September 7, 1990, as
amended or supplemented, between American Telephone & Telegraph Company and The
Bank of New York, as trustee.
"NYSE" means the New York Stock Exchange.
"NYSE Trading Day" means any day on which securities of AT&T are
_____________
Bank of New York, – Senior Notes" means any of the securities issued pursuant to the
Indenture dated as of November 21, 2001 between AT&T and The Bank of New York,
as Trustee.
"Separation" has the meaning set forth in the Separation and Distribution
Agreement.
17
{PAGE}
"Separation and Distribution Agreement" means the
_____________
Bank of New York, – each of the Ancillary Agreements.
"Trust Agreement" means the Trust Agreement dated as of June 16, 1999
among AT&T, as Depositor, The Bank of New York, as Property Trustee, The Bank
of New York (Delaware), as Delaware Trustee, and the administrative trustees
named therein, relating to the Issuer
_____________
dt 573883
;
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| 2001 |
Agreement and Plan of Merger
Agreement and Plan of Merger (362K)
Doc #1091138: Click preview link for longer preview.
AGREEMENT AND PLAN OF MERGER
dated as of
December 19, 2001
by and among
AT&T CORP.,
AT&T BROADBAND CORP.,
COMCAST CORPORATION,
AT&T BROADBAND ACQUISITION CORP.,
COMCAST ACQUISITION CORP.
and
AT&T COMCAST CORPORATION
<PAGE>
. . .
1091138
|
AT&T Wireless
As referenced in this Agreement and Plan of Merger:
AT&T Wireless Services,
Inc – free transaction pursuant to
Section 355 of the Code and (z) the Separation and Distribution will not cause
the distribution by AT&T of all of the common stock of AT&T Wireless Services,
Inc . or of Liberty Media Corporation to fail to qualify as tax- free
transactions pursuant to Sections 355 and 368(a) of the Code. In lieu of
obtaining the supplemental
_____________
dt 1699472
;
|
BNY
As referenced in this Agreement and Plan of Merger:
Bank of New York, – within the meaning
of Section 602(9) of the Communications Act).
"Guarantee Agreement" means the Guarantee Agreement dated as of June 16,
1999 between AT&T, as Guarantor, and The Bank of New York, as Guarantor
Trustee, relating to the Issuer Trust.
"HSR Act" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976,
as amended, and the rules and regulations promulgated thereunder.
_____________
Bank of New York, – has the meaning set forth in the Separation and
Distribution Agreement.
"Indenture" means the Indenture dated as of June 16, 1999, as amended or
supplemented, between AT&T and The Bank of New York, as Trustee, relating to
the Debentures.
"Independent Person" has the meaning set forth in the Parent Charter.
"Index" means the Standard and Poors' 500 Index.
"Interim Finance Committee" means
_____________
Bank of New York, – majority in aggregate principal amount of such series.
"Notes Indenture" means the Indenture dated as of September 7, 1990, as
amended or supplemented, between American Telephone & Telegraph Company and The
Bank of New York, as trustee.
"NYSE" means the New York Stock Exchange.
"NYSE Trading Day" means any day on which securities of AT&T are traded on
the NYSE.
"NYSE Trading Value"
_____________
Bank of New York, – the United States Securities and Exchange Commission.
"Senior Notes" means any of the securities issued pursuant to the
Indenture dated as of November 21, 2001 between AT&T and The Bank of New York,
as Trustee.
"Separation" has the meaning set forth in the Separation and Distribution
Agreement.
17
"Separation and Distribution Agreement" means the Separation and
Distribution Agreement dated as of
_____________
Bank of New York, – means this Agreement, the Support Agreement and
each of the Ancillary Agreements.
"Trust Agreement" means the Trust Agreement dated as of June 16, 1999
among AT&T, as Depositor, The Bank of New York, as Property Trustee, The Bank
of New York (Delaware), as Delaware Trustee, and the administrative trustees
named therein, relating to the Issuer Trust.
"Trust Common Securities" means the common
_____________
dt 1725335
|
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| 2003 |
Annual Report to Shareholders
Annual Report to Shareholders (449K)
Doc #1919815: Click preview link for longer preview.
ADVANTUS EQUITY FUNDS [LOGO]
ANNUAL REPORT TO SHAREHOLDERS
DATED JULY 31, 2002
ADVANTUS CORNERSTONE FUND, INC.
A LARGE COMPANY VALUE FUND
ADVANTUS ENTERPRISE FUND, INC.
A SMALL COMPANY GROWTH FUND
ADVANTUS HORIZON FUND, INC.
A LARGE COMPANY GROWTH FUND
ADVANTUS INDEX 500 FUND, INC.
A LARGE COMPANY INDEX FUND
ADVANTUS REAL ESTATE SECURITIES FUND, INC.
A REAL ESTATE - RELATED SECURITIES FUND
ADVANTUS VENTURE FUND, INC.
A SMALL COMPANY VALUE FUND
CUT DOWN PAPERWORK, NOT TREES
Advantus now offers e-delivery of prospectuses, annual and semi-annual reports.
To find out more, call Advantus Shareholder Services at (800) 665-6005.
ADVANTUS EQUITY FUNDS
TABLE OF CONTENTS
PERFORMANCE UPDATES
Cornerstone Fund 3
Enterprise Fund 7
Horizon Fund 12
Index 500 Fund 18
Real Estate Securities Fund 22
Venture Fund 27
INVESTMENTS IN SECURITIES
Cornerstone Fund 31
Enterprise Fund 37
Horizon Fund 42
Index 500 Fund 48
Real Estate Securities Fund 65
Venture Fund 68
FINANCIAL STATEMENTS
Statements of Assets and Liabilities 76
Statements of Operations 80
Statements of Changes in Net Assets 84
Notes to Financial Statements 90
INDEPENDENT AUDITORS' REPORT 117
FEDERAL INCOME TAX INFORMATION 118
DIRECTORS AND EXECUTIVE OFFICERS 120
SHAREHOLDER SERVICES 122
LETTER FROM THE PRESIDENT
[PHOTO OF DIANNE ORBISON]
Dear Shareholders:
It's been a very eventful year in the economy and the markets. We've seen a
major rally in the bond market, and a major sell off in stocks. Negative events,
questionable earnings reports, and unscrupulous corporate leadership is a lot of
weight for the stock market to carry. Investors are still not confident that the
market can bear the load, which contributed to the stock sell off during the
first half of the year.
A flight to quality is still underway, and this is not unusual when political,
social, and economic events hold uncertainty. In the period ended July 31, 2002,
strong fixed income performance (Lehman Aggregate Bond Index* at 7.84%) and very
weak equity performance (S&P 500 Index** at -23.63) was recorded. The difference
in returns between stocks and bonds, as measured by these two benchmark indices,
was near record levels.
We believe the capital markets will continue to be volatile and suggest that
investors adjust their expectations for a time-specific market recovery. Current
market conditions didn't happen overnight, and it has taken longer than expected
for a sustainable recovery to surface. Although most segments of the stock
market were down at the end of our reporting period, we believe valuations are
fair and better than they have been in six months.
The economy is growing, albeit slowly. We expect that U.S. growth, as measured
by GDP, will be a respectable 2.5 percent in 2002. Monetary policy is still
easy, and we expect no changes from the Federal Reserve in the near term.
Inflation is running less than two percent annually with little, if any,
increase expected.
Also, the underlying strength of the U.S. economy remains solid. The weakness of
the dollar, however, may benefit investors considering a greater allocation to
international investments. Consider having a periodic conversation with your
financial advisor about your goals, risk tolerance, and allocation strategy.
You will notice that all Advantus equity funds are included in this report. The
remaining Advantus Funds (fixed income and balanced) will be published in an
annual report to be dated September 30, 2002. We have combined the reports for
the funds into two mailings to achieve economies of scale in report preparation
and mailing. We are also moving forward with plans to combine Advantus Funds
prospectuses in the same way and for the same reasons.
This is my first letter to you as President of the Advantus Funds. Bill
Westhoff, former President and investment management veteran, retired in late
July, 2002 after 31 years of service to shareholders. I look forward to
communicating with
1
you on a regular basis and bringing you news of the economy, markets,
and Advantus.
Sincerely,
/s/ Dianne Orbison
Dianne Orbison
President, Advantus Funds
*The LEHMAN BROTHERS AGGREGATE BOND INDEX is a market-weighted index that covers
the U.S. investment grade fixed rate bond market. The index includes government
and corporate securities, agency mortgage pass-through securities and asset
backed securities.
1919815
|
AT&T Wireless
As referenced in this Annual Report to Shareholders:
AT&T Wireless Services, Inc – 184
----------
28,412
----------
Waste Management (.2%)
756 Allied Waste Industries (b) 4,990
2,456 Waste Management, Inc. 58,134
----------
63,124
----------
COMMUNICATION SERVICES (3.9%)
Cellular (.2%)
10,755 AT&T Wireless Services, Inc . (b) 50,441
1,107 Citizens Communications Company (b) 6,066
3,195 Nextel Communications, Inc. (b) 18,307
----------
74,814
----------
Telecommunication (.4%)
3,053 Qualcomm, Inc. (b) 83,
_____________
dt 1338554
;
Adaptec
As referenced in this Annual Report to Shareholders:
Adaptec, Inc – Renal Care Group, Inc. (b) 405,000
-------------
1,877,626
-------------
TECHNOLOGY (14.7%)
Communications Equipment (.3%)
89,100 Openwave Systems, Inc. (b) 89,100
-------------
Computer Networking (2.1%)
39,100 Adaptec, Inc . (b) 230,690
42,500 Legato Systems, Inc. (b) 114,750
40,250 Radiant Systems, Inc. (b) 313,950
-------------
659,390
-------------
Computer Services & Software (7.0%)
30,600 Agile
_____________
dt 1515926
;
Adaptec
As referenced in this Annual Report to Shareholders:
Adaptec, Inc. – Renal Care Group, Inc. (b) 405,000
-------------
1,877,626
-------------
TECHNOLOGY (14.7%)
Communications Equipment (.3%)
89,100 Openwave Systems, Inc. (b) 89,100
-------------
Computer Networking (2.1%)
39,100 Adaptec, Inc. (b) 230,690
42,500 Legato Systems, Inc. (b) 114,750
40,250 Radiant Systems, Inc. (b) 313,950
-------------
659,390
-------------
Computer Services & Software (7.0%)
30,600 Agile
_____________
dt 1457199
;
|
Aeroflex
As referenced in this Annual Report to Shareholders:
Aeroflex, Inc. – 12,500 Precise Software Solutions, Ltd. (b)(c) 157,000
-------------
2,170,305
-------------
Data Processing (1.6%)
30,304 Documentum, Inc. (b) 490,828
-------------
Electrical Defense (1.0%)
40,300 Aeroflex, Inc. (b) 306,280
-------------
{/TABLE}
See accompanying notes to investments in securities.
40
{PAGE}
{TABLE}
{CAPTION}
MARKET
SHARES VALUE(a)
------ ---------
{S} {C}
TECHNOLOGY--CONTINUED
Electrical Instruments (--)
51,700 APW, Ltd. (
_____________
dt 1459645
;
Affymetrix
As referenced in this Annual Report to Shareholders:
Affymetrix, Inc – 128 2.2%
Lifepoint Hospitals, Inc. 17,600 599,280 2.2%
CACI International, Inc. 17,200 589,616 2.1%
Education Management Corporation 13,800 550,758 2.0%
Affymetrix, Inc . 30,100 537,285 1.9%
---------- -----
$6,195,635 22.3%
========== ====
{/TABLE}
[CHART]
{TABLE}
{S} {C}
Cash and Other Assets/Liabilities (10.9%)
Transportation (1.0%)
Basic Materials (1.
_____________
Affymetrix, Inc – 6,100 Affiliated Managers Group (b) 288,042
-------------
Savings and Loans (1.1%)
15,000 IndyMac Bancorp, Inc. (b) 330,750
-------------
HEALTH CARE (24.8%)
Biotechnology (3.0%)
30,100 Affymetrix, Inc . (b) 537,285
14,800 Lynx Therapeutics, Inc. (b) 14,652
11,800 Scios, Inc. (b) 370,048
-------------
921,985
-------------
Drugs (4.9%)
12,600 Cubist Pharmaceuticals, Inc. (b)
_____________
dt 1551693
;
More... |
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Full Doc
| 2003 |
Annual Report to Shareholders
Annual Report to Shareholders (449K)
Doc #1922269: Click preview link for longer preview.
ADVANTUS EQUITY FUNDS [LOGO]
ANNUAL REPORT TO SHAREHOLDERS
DATED JULY 31, 2002
ADVANTUS CORNERSTONE FUND, INC.
A LARGE COMPANY VALUE FUND
ADVANTUS ENTERPRISE FUND, INC.
A SMALL COMPANY GROWTH FUND
ADVANTUS HORIZON FUND, INC.
A LARGE COMPANY GROWTH FUND
ADVANTUS INDEX 500 FUND, INC.
A LARGE COMPANY INDEX FUND
ADVANTUS REAL ESTATE SECURITIES FUND, INC.
A REAL ESTATE - RELATED SECURITIES FUND
ADVANTUS VENTURE FUND, INC.
A SMALL COMPANY VALUE FUND
CUT DOWN PAPERWORK, NOT TREES
Advantus now offers e-delivery of prospectuses, annual and semi-annual reports.
To find out more, call Advantus Shareholder Services at (800) 665-6005.
ADVANTUS EQUITY FUNDS
TABLE OF CONTENTS
PERFORMANCE UPDATES
Cornerstone Fund 3
Enterprise Fund 7
Horizon Fund 12
Index 500 Fund 18
Real Estate Securities Fund 22
Venture Fund 27
INVESTMENTS IN SECURITIES
Cornerstone Fund 31
Enterprise Fund 37
Horizon Fund 42
Index 500 Fund 48
Real Estate Securities Fund 65
Venture Fund 68
FINANCIAL STATEMENTS
Statements of Assets and Liabilities 76
Statements of Operations 80
Statements of Changes in Net Assets 84
Notes to Financial Statements 90
INDEPENDENT AUDITORS' REPORT 117
FEDERAL INCOME TAX INFORMATION 118
DIRECTORS AND EXECUTIVE OFFICERS 120
SHAREHOLDER SERVICES 122
LETTER FROM THE PRESIDENT
[PHOTO OF DIANNE ORBISON]
Dear Shareholders:
It's been a very eventful year in the economy and the markets. We've seen a
major rally in the bond market, and a major sell off in stocks. Negative events,
questionable earnings reports, and unscrupulous corporate leadership is a lot of
weight for the stock market to carry. Investors are still not confident that the
market can bear the load, which contributed to the stock sell off during the
first half of the year.
A flight to quality is still underway, and this is not unusual when political,
social, and economic events hold uncertainty. In the period ended July 31, 2002,
strong fixed income performance (Lehman Aggregate Bond Index* at 7.84%) and very
weak equity performance (S&P 500 Index** at -23.63) was recorded. The difference
in returns between stocks and bonds, as measured by these two benchmark indices,
was near record levels.
We believe the capital markets will continue to be volatile and suggest that
investors adjust their expectations for a time-specific market recovery. Current
market conditions didn't happen overnight, and it has taken longer than expected
for a sustainable recovery to surface. Although most segments of the stock
market were down at the end of our reporting period, we believe valuations are
fair and better than they have been in six months.
The economy is growing, albeit slowly. We expect that U.S. growth, as measured
by GDP, will be a respectable 2.5 percent in 2002. Monetary policy is still
easy, and we expect no changes from the Federal Reserve in the near term.
Inflation is running less than two percent annually with little, if any,
increase expected.
Also, the underlying strength of the U.S. economy remains solid. The weakness of
the dollar, however, may benefit investors considering a greater allocation to
international investments. Consider having a periodic conversation with your
financial advisor about your goals, risk tolerance, and allocation strategy.
You will notice that all Advantus equity funds are included in this report. The
remaining Advantus Funds (fixed income and balanced) will be published in an
annual report to be dated September 30, 2002. We have combined the reports for
the funds into two mailings to achieve economies of scale in report preparation
and mailing. We are also moving forward with plans to combine Advantus Funds
prospectuses in the same way and for the same reasons.
This is my first letter to you as President of the Advantus Funds. Bill
Westhoff, former President and investment management veteran, retired in late
July, 2002 after 31 years of service to shareholders. I look forward to
communicating with
1
you on a regular basis and bringing you news of the economy, markets,
and Advantus.
Sincerely,
/s/ Dianne Orbison
Dianne Orbison
President, Advantus Funds
*The LEHMAN BROTHERS AGGREGATE BOND INDEX is a market-weighted index that covers
the U.S. investment grade fixed rate bond market. The index includes government
and corporate securities, agency mortgage pass-through securities and asset
backed securities.
1922269
|
AT&T Wireless
As referenced in this Annual Report to Shareholders:
AT&T Wireless Services, Inc – 184
----------
28,412
----------
Waste Management (.2%)
756 Allied Waste Industries (b) 4,990
2,456 Waste Management, Inc. 58,134
----------
63,124
----------
COMMUNICATION SERVICES (3.9%)
Cellular (.2%)
10,755 AT&T Wireless Services, Inc . (b) 50,441
1,107 Citizens Communications Company (b) 6,066
3,195 Nextel Communications, Inc. (b) 18,307
----------
74,814
----------
Telecommunication (.4%)
3,053 Qualcomm, Inc. (b) 83,
_____________
dt 1338555
;
Adaptec
As referenced in this Annual Report to Shareholders:
Adaptec, Inc – Renal Care Group, Inc. (b) 405,000
-------------
1,877,626
-------------
TECHNOLOGY (14.7%)
Communications Equipment (.3%)
89,100 Openwave Systems, Inc. (b) 89,100
-------------
Computer Networking (2.1%)
39,100 Adaptec, Inc . (b) 230,690
42,500 Legato Systems, Inc. (b) 114,750
40,250 Radiant Systems, Inc. (b) 313,950
-------------
659,390
-------------
Computer Services & Software (7.0%)
30,600 Agile
_____________
dt 1515928
;
Adaptec
As referenced in this Annual Report to Shareholders:
Adaptec, Inc. – Renal Care Group, Inc. (b) 405,000
-------------
1,877,626
-------------
TECHNOLOGY (14.7%)
Communications Equipment (.3%)
89,100 Openwave Systems, Inc. (b) 89,100
-------------
Computer Networking (2.1%)
39,100 Adaptec, Inc. (b) 230,690
42,500 Legato Systems, Inc. (b) 114,750
40,250 Radiant Systems, Inc. (b) 313,950
-------------
659,390
-------------
Computer Services & Software (7.0%)
30,600 Agile
_____________
dt 1457201
;
|
Aeroflex
As referenced in this Annual Report to Shareholders:
Aeroflex, Inc. – 12,500 Precise Software Solutions, Ltd. (b)(c) 157,000
-------------
2,170,305
-------------
Data Processing (1.6%)
30,304 Documentum, Inc. (b) 490,828
-------------
Electrical Defense (1.0%)
40,300 Aeroflex, Inc. (b) 306,280
-------------
{/TABLE}
See accompanying notes to investments in securities.
40
{PAGE}
{TABLE}
{CAPTION}
MARKET
SHARES VALUE(a)
------ ---------
{S} {C}
TECHNOLOGY--CONTINUED
Electrical Instruments (--)
51,700 APW, Ltd. (
_____________
dt 1459646
;
Affymetrix
As referenced in this Annual Report to Shareholders:
Affymetrix, Inc – 128 2.2%
Lifepoint Hospitals, Inc. 17,600 599,280 2.2%
CACI International, Inc. 17,200 589,616 2.1%
Education Management Corporation 13,800 550,758 2.0%
Affymetrix, Inc . 30,100 537,285 1.9%
---------- -----
$6,195,635 22.3%
========== ====
{/TABLE}
[CHART]
{TABLE}
{S} {C}
Cash and Other Assets/Liabilities (10.9%)
Transportation (1.0%)
Basic Materials (1.
_____________
Affymetrix, Inc – 6,100 Affiliated Managers Group (b) 288,042
-------------
Savings and Loans (1.1%)
15,000 IndyMac Bancorp, Inc. (b) 330,750
-------------
HEALTH CARE (24.8%)
Biotechnology (3.0%)
30,100 Affymetrix, Inc . (b) 537,285
14,800 Lynx Therapeutics, Inc. (b) 14,652
11,800 Scios, Inc. (b) 370,048
-------------
921,985
-------------
Drugs (4.9%)
12,600 Cubist Pharmaceuticals, Inc. (b)
_____________
dt 1551694
;
More... |
Preview
Full Doc
| 2003 |
Asset Exchange Agreement
Asset Exchange Agreement (278K)
Doc #269711: Click preview link for longer preview.
ASSET EXCHANGE AGREEMENT
between
DOBSON CELLULAR SYSTEMS, INC.
and
AT&T WIRELESS SERVICES, INC.
Dated as of December 24, 2002
{PAGE}
ASSET EXCHANGE AGREEMENT
ASSET EXCHANGE AGREEMENT, dated as of December 24, 2002, between DOBSON
CELLULAR SYSTEMS, INC., an Oklahoma corporation ("DCS"), and AT&T WIRELESS
SERVICES, INC., a Delaware corporation ("AWS").
WHEREAS, AWS directly or indirectly owns (either by itself or with others)
and operates wireless telecommunications systems (the "ALASKA SYSTEMS") in the
territory covered by the Alaska Cellular Authorizations (as defined in Section
2.3(a)) (collectively, the "ALASKA MARKETS"); and DCS directly or indirectly
owns (either by itself or with others) and operates wireless telecommunications
systems (the "CALIFORNIA SYSTEMS") in the territory covered by the California
Cellular Authorizations (as defined in Section 2.1(a)) (collectively, the
"CALIFORNIA MARKETS"); and
WHEREAS, AWS and its Affiliates are engaged in the business of marketing,
selling and providing wireless telecommunications services in the Alaska Markets
(such business, as conducted by AWS, is referred to herein as the "ALASKA
BUSINESS"); and DCS and its Affiliates are engaged in the business of marketing,
selling and providing wireless telecommunications services in the California
Markets (such business, as conducted by DCS, is referred to herein as the
"CALIFORNIA BUSINESS"); and
WHEREAS, AWS and DCS desire to effect an exchange (the "EXCHANGE") of,
among other things, the assets and rights of DCS that relate primarily to the
ownership and operation of the California Systems, including certain licenses
issued by the Federal Communications Commission (the "FCC"), for the assets and
rights of AWS that relate primarily to the ownership and operation of the Alaska
Systems, including certain licenses issued by the FCC, all subject to the terms
and conditions set forth herein; and
WHEREAS, the parties desire that the Exchange be structured as a like-kind
exchange under section 1031 of the Internal Revenue Code of 1986, as amended
(the "CODE"), to the fullest extent practicable.
NOW, THEREFORE, in consideration of the premises and mutual covenants and
agreements herein set forth and for other good and valuable consideration, the
receipt and adequacy of which are hereby acknowledged, the parties hereto hereby
agree as follows:
ARTICLE 1
EXCHANGE
Section 1.1. Asset Consolidation
At or prior to Closing, (a) AWS and DCS will use all commercially
reasonable efforts, at the expense of DCS (except with regard to any fees of
AWS's outside counsel), to effect the transactions described on Schedule 1.1(a)
(the assets, properties and rights to be conveyed to AWS pursuant to such
transactions are referred to herein as the "REDEMPTION ASSETS") and (b) AWS will
use all commercially reasonable efforts, at the expense of AWS, to effect the
transactions described on Schedule 1.1(b).
{PAGE}
Section 1.2. Exchange
Except as otherwise provided and subject to the terms and conditions set
forth in this Agreement:
(a) At Closing, AWS will, and will cause its Affiliates to, assign,
transfer, deliver and convey to DCS, free and clear of all security interests,
liens, pledges, charges, encroachments, defects of title, options, rights of
first refusal or other rights of third parties (absolute or contingent),
easements or any other encumbrance or restriction on the use or exercise of any
attribute of ownership (collectively, "LIENS") other than Permitted Liens (as
defined in Section 18.18), and DCS will acquire, all right, title, and interest
of AWS and its Affiliates in and to, the Alaska Assets (as defined in Section
2.3), in exchange for the California Assets (as defined in Section 2.1).
(b) At Closing, DCS will, and will cause its Affiliates to, assign,
transfer, deliver and convey to AWS, free and clear of all Liens other than
Permitted Liens, and AWS will acquire, all right, title and interest of DCS and
its Affiliates in and to the California Assets, in exchange for the Alaska
Assets.
(c) At Closing, AWS will assign, transfer, deliver and convey to Dobson
Communications Corporation ("DCC"), free and clear of all Liens (other than
Liens created by any agreement to which DCC is a party), all right, title and
interest of AWS in and to the shares of Series AA Preferred Stock of DCC owned
by AWS, including any right to receive dividends or other distributions thereon
(the "DCC SECURITIES").
Section 1.3. Like-Kind Exchange
(a) The parties shall cause the Exchange to be treated in such a manner
that such exchange qualifies as a tax-free exchange of multiple, like-kind
assets to the maximum extent permitted by section 1031 of the Code.
Notwithstanding any other provision in this Agreement, including this Section
1.3, each party acknowledges and agrees that it (i) has obtained its own,
separate tax advice with respect to the characterization of the exchanges
hereunder as like-kind exchanges of property under section 1031 of the Code, and
(ii) is not relying on any representations of the other party with respect to
the characterization of the exchanges hereunder as like-kind exchanges of
property under section 1031 of the Code.
(b) On or prior to the Closing Date, DCS and AWS shall agree upon the
relative fair market values of the assets to be delivered to the other party
pursuant to Section 1.2. AWS and DCS agree to cause all tax returns and reports
relating to the transactions contemplated hereby, including Internal Revenue
Service Form 8594, to be filed in accordance with such agreement and not to take
any position inconsistent therewith unless required to do so pursuant to a
"DETERMINATION" as such term is defined in section 1313 of the Code.
-2-
{PAGE}
ARTICLE 2
EXCHANGED ASSETS; EXCLUDED ASSETS
Section 2.1. California Assets. The assets, properties and rights to be
conveyed to AWS pursuant to this Agreement shall be all of the assets,
properties and rights of DCS and its Affiliates that relate primarily to the
California Business (the "CALIFORNIA ASSETS"), including the following assets,
properties and rights of DCS and its Affiliates:
(a) (i) the FCC licenses and authorizations, including (x) FCC licenses
and authorizations to construct, own and operate a cellular telecommunications
system in the California Markets (the "CALIFORNIA CELLULAR AUTHORIZATIONS") and
certain microwave licenses used in connection with such cellular operations (the
"CALIFORNIA MICROWAVE AUTHORIZATIONS") and (y) construction permits, if any,
that have been issued by the FCC to DCS or an Affiliate with respect to
construction of a cellular telecommunications system in the California Markets
(together with the California Cellular Authorizations and the California
Microwave Authorizations, the "CALIFORNIA FCC AUTHORIZATIONS"), that are listed
on Schedule 2.1(a)(i) and (ii) the licenses and authorizations issued by any
state body having jurisdiction over the California Business that are listed on
Schedule 2.1(a)(ii);
(b) all rights of DCS and its Affiliates under (i) all Contracts (as
defined in Section 18.18) between DCS or an Affiliate and subscribers that are
related primarily to the California Business, (ii) all Contracts listed on
Schedule 7.5(a), (iii) all Contracts that are not required to be listed on
Schedule 7.5(a) solely because they involve dollar amounts that are below the
thresholds for inclusion on such Schedule, and (iv) all Contracts, entered into
during the period commencing on the date hereof and ending on the Closing Date,
which AWS agrees to assume in accordance with clause (ii) of the first sentence
of Section 3.1 (all such Contracts that are not Excluded California Contracts
(as defined in Section 2.2(d)) are referred to collectively as the "ASSUMED
CALIFORNIA CONTRACTS");
(c) all right, title and interest of DCS and its Affiliates in and to the
towers, tower equipment, antennas, switching and cell site equipment and
buildings, microwave equipment, mobile identification numbers, tools, testing
equipment, motor vehicles, office equipment, furniture and fixtures, supplies
and inventory, electrical power units, transmission lines, installations,
269711
|
AT&T Wireless
As referenced in this Asset Exchange Agreement:
AT&T WIRELESS SERVICES, – FILENAME}v86846exv4w6.txt
{DESCRIPTION}EXHIBIT 4.6
{TEXT}
{PAGE}
Exhibit 4.6
EXECUTION COPY
ASSET EXCHANGE AGREEMENT
between
DOBSON CELLULAR SYSTEMS, INC.
and
AT&T WIRELESS SERVICES, INC.
Dated as of December 24, 2002
{PAGE}
ASSET EXCHANGE AGREEMENT
ASSET EXCHANGE AGREEMENT, dated as of December 24, 2002, between DOBSON
_____________
AT&T WIRELESS
SERVICES, – PAGE}
ASSET EXCHANGE AGREEMENT
ASSET EXCHANGE AGREEMENT, dated as of December 24, 2002, between DOBSON
CELLULAR SYSTEMS, INC., an Oklahoma corporation ("DCS"), and AT&T WIRELESS
SERVICES, INC., a Delaware corporation ("AWS").
WHEREAS, AWS directly or indirectly owns (either by itself or with others)
and operates wireless telecommunications systems (
_____________
AT&T Wireless Services – being agreed that AWS
shall use such numbers solely as E.164 addresses for GSM nodes);
(l) all right, title and interest of AT&T Wireless Services of Alaska,
Inc. ("AWS ALASKA") in and to its partnership interest (the "CORDOVA INTEREST")
in the Cordova Wireless Partnership, an Alaska general partnership (
_____________
AT&T WIRELESS SERVICES, – executed by its duly authorized representative as of
the day and year first above written.
DOBSON CELLULAR SYSTEMS, INC.
By _________________________________________
Name:
Title:
AT&T WIRELESS SERVICES, INC.
By _________________________________________
Name:
Title:
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {C}
ARTICLE 1 EXCHANGE........................................................ 1
Section 1.1. Asset
_____________
dt 179772
;
AT&T
As referenced in this Asset Exchange Agreement:
AT&T Corp – DCS shall use commercially reasonable efforts to work together in
good faith to negotiate the AT&T Wireless Brand Transition License Agreement
with AT&T Corp . DCS acknowledges that the terms of the AT&T Wireless Brand
Transition
-56-
{PAGE}
License Agreement shall be subject to the approval
_____________
AT&T Corp – DCS acknowledges that the terms of the AT&T Wireless Brand
Transition
-56-
{PAGE}
License Agreement shall be subject to the approval of AT&T Corp . in its sole
discretion. AWS shall pay any expenses in connection with its use of the
Cellular One brand under the Cellular
_____________
AT&T Corp – Agreement),
AWS and DCS shall use commercially reasonable efforts to work together in good
faith to negotiate a tagline branding license agreement with AT&T Corp .,
pursuant to which DCS would have the right to use the AT&T Wireless tagline in
the State of Alaska together with
_____________
AT&T Corp – specified therein (other than
Cellular One). DCS acknowledges that the terms of any such license agreement
shall be subject to the approval of AT&T Corp . in its sole discretion.
Section 9.18. Environmental Security Deposit
Prior to the Closing, AWS will provide a security deposit, letter of
_____________
AT&T Corp – the Addendum No. 3 to the
Operating Agreement, the GSM Roaming Agreement (Alaska), the GSM Build-Out
Agreement (Alaska) and the SOC Letter. AT&T Corp . and AWS shall have executed
and delivered to DCS the AT&T Wireless Brand Transition License Agreement.
Section 11.9. Governmental Authorizations
_____________
dt 177637
;
Dobson Cellular
As referenced in this Asset Exchange Agreement:
DOBSON CELLULAR SYSTEMS, – EX-4.6
{SEQUENCE}3
{FILENAME}v86846exv4w6.txt
{DESCRIPTION}EXHIBIT 4.6
{TEXT}
{PAGE}
Exhibit 4.6
EXECUTION COPY
ASSET EXCHANGE AGREEMENT
between
DOBSON CELLULAR SYSTEMS, INC.
and
AT&T WIRELESS SERVICES, INC.
Dated as of December 24, 2002
{PAGE}
ASSET EXCHANGE AGREEMENT
ASSET EXCHANGE AGREEMENT, dated as
_____________
DOBSON
CELLULAR SYSTEMS, – WIRELESS SERVICES, INC.
Dated as of December 24, 2002
{PAGE}
ASSET EXCHANGE AGREEMENT
ASSET EXCHANGE AGREEMENT, dated as of December 24, 2002, between DOBSON
CELLULAR SYSTEMS, INC., an Oklahoma corporation ("DCS"), and AT&T WIRELESS
SERVICES, INC., a Delaware corporation ("AWS").
WHEREAS, AWS directly or indirectly owns (either
_____________
Dobson Cellular Systems, – Broadway, 46th Floor
New York, New York 10019
Attention: Matthew S. Haiken
Facsimile: 212-833-1250
Email: mhaiken@fklaw.com
If to DCS:
Dobson Cellular Systems, Inc.
14201 Wireless Way
Oklahoma City, OK 73134
Attention: Ronald L. Ripley, Esq.
Facsimile: (405) 529-8765
Email: rripley@dobson.net
with
_____________
DOBSON CELLULAR SYSTEMS, – has caused this Asset
Exchange Agreement to be executed by its duly authorized representative as of
the day and year first above written.
DOBSON CELLULAR SYSTEMS, INC.
By _________________________________________
Name:
Title:
AT&T WIRELESS SERVICES, INC.
By _________________________________________
Name:
Title:
{PAGE}
TABLE OF CONTENTS
{TABLE}
{CAPTION}
Page
----
{S} {
_____________
dt 181614
;
|
BofA
As referenced in this Asset Exchange Agreement:
Bank of America, N.A. – 18, 2000 (together with
any successor or replacement agreement, the "DOC CREDIT AGREEMENT") among Dobson
Operating Co., L.L.C. ("DOC") as borrower, Bank of America, N.A. , as
administrative agent, and the lenders named therein, as amended from time to
time, shall have executed and delivered to DOC the
_____________
dt 168589
;
 Edwards & Angell
As referenced in this Asset Exchange Agreement:
Edwards & Angell, – the terms and conditions hereof, the closing of the
transactions contemplated by this Agreement (the "CLOSING") shall take place at
the offices of Edwards & Angell, LLP, 750 Lexington Avenue, New York, New York
10022, on the date (the "CLOSING DATE") which is the latest of (a) the
_____________
Edwards & Angell, – Attention: Ronald L. Ripley, Esq.
Facsimile: (405) 529-8765
Email: rripley@dobson.net
with a required copy (which shall not constitute notice) to:
Edwards & Angell, LLP
2800 Financial Plaza
Providence, Rhode Island 02903
Attention: David K. Duffell, Esq.
Facsimile: (401) 276-6611
Email: dduffell@ealaw.com
Notices
_____________
dt 159177
|
Preview
Full Doc
| 2003 |
Asset Purchase Agreement
Asset Purchase Agreement (41K)
Doc #119854: Click preview link for longer preview.
{DOCUMENT}
{TYPE}EX-10
{SEQUENCE}3
ASSET PURCHASE AGREEMENT
This Asset Purchase Agreement (this "Agreement") is entered into
on January 16, 2003, by and between CLAIRCOM COMMUNICATIONS GROUP,
INC., (doing business as AT&T Wireless Services, Aviation
Communications Division, a Delaware corporation,) having its
principal place of business at 1100 Second Avenue, Suite 300,
Seattle, Washington 98101 ("Seller"), and Sky Way Aircraft, Inc.,
a Nevada corporation, having its principal place of business at
2701 N. Rocky Point Dr. Suite 1150, Tampa, Florida 33607
("Buyer").
In consideration of the mutual covenants, conditions and terms set
forth in this Agreement, Seller and Buyer agree as follows:
1. Purchase and Sale, Assignment and License
1.1 Assets Included
Seller shall sell, assign or license to Buyer certain of seller's
rights, titles and interests in and to certain assets as set forth
below (the "Assets"), and Buyer shall accept the same, all on the
terms and conditions set forth in this Agreement.
1.2 Equipment
Seller shall sell, convey, assign and transfer to Buyer the
equipment, components, parts, servers and other items of tangible
personal property listed in Schedule A-1 of Exhibit A of this
Agreement (the "Equipment") pursuant to and in accordance with a
bill of sale substantially in the form of the Bill of Sale
attached as Exhibit A (the "Bill of Sale").
1.3 Assigned Patent Rights
No patent rights are assigned under the present agreement. The
parties agree to negotiate in good faith to attempt to arrive at a
mutually agreeable separate contract for assignment to Buyer all
of its right, title and interest in the patents and patent
applications listed in Exhibit B to this Agreement. If the
parties are unable to arrive at a mutually acceptable agreement
prior to 05 February 2003, then assignment negotiations will
terminate on 28 February 2003 and Seller has no obligation to
assign any patent rights to Buyer. Thus, after termination of
negotiations, Seller may license or assign the patents and patent
applications listed in Exhibit B to any third party. Until 28
February 2003, Seller agrees not to assign the patents and patent
applications listed in Exhibit B to third parties.
1.4 Licensed Patent Rights
No patent licenses, express or implied, are granted under the
present agreement. The parties agree to negotiate in good faith
to arrive at a mutually agreeable separate contract for non-
exclusive, perpetual license to Buyer of certain mutually agreed
rights in the patents and patent applications listed in Exhibit C
of this Agreement. If the parties are unable to arrive at a
mutually acceptable agreement prior to 05 February 2003, then
license negotiations will terminate on 28 February 2003 and Seller
has no obligation to license any patent rights to Buyer. Thus,
after termination of negotiations, Seller may license or assign
the patents and patent applications listed in Exhibit C to any
third parties.
1.5 Ground Station Site Information
Promptly after the Closing Date (as defined below), Seller shall
deliver to Buyer a copy of a database of certain contact
information for the lessors of certain ground station sites
previously used or intended for use by Seller for a proposed
wireless communication network for communications between ground-
based stations and aircraft cockpits, together with a copy of such
additional information relating to Seller's abandoned business
plan for such a network as may be agreed upon in writing by Seller
and Buyer (collectively, the "Ground Station Site Information");
provided, however, that (a) Seller shall not be obligated to
disclose or delver any such information to the extent restricted
by Seller's confidentiality obligations to any third party (as
determined after February 28, 2003. SELLER MAKES NO
REPRESETATIONS OR WARRANTY REGARDING ANY SUCH INFORMATION,
INCLUDING{ WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY THAT
SUCH INFORMATION IS COMPLETE OR ACCCURATE.
1.6 Assets Excluded
All other assets of Seller are excluded from the transactions
hereunder.
2. Price and Terms
2.1 Purchase Price
The aggregate price payable by Buyer under this Agreement for the
transfer of the Equipment, the delivery of Ground Station Site
Information, and reservation of negotiation period for assignment
and license of patent rights (collectively, the "Transactions")
shall be Five Hundred Thousand Dollars ($500,000) (the "Purchase
Price"). The Purchase Price shall be allocated among the
Transactions as follows:
Two Hundred Fifty Thousand Dollars ($250,000) for the Equipment;
Two Hundred Thousand Dollars ($200,000) for the Ground Station
Site Information; and Fifty Thousand Dollars ($50,000) for the
constraint on Claircom's ability to assign the patents to other
interested parties during the negotiation period. If the parties
arrive at mutually acceptable terms for assignment and license of
rights to patents and applications listed in Exhibit B and Exhibit
119854
|
AT&T Wireless
As referenced in this Asset Purchase Agreement:
AT&T Wireless Services, – This Asset Purchase Agreement (this "Agreement") is entered into
on January 16, 2003, by and between CLAIRCOM COMMUNICATIONS GROUP,
INC., (doing business as AT&T Wireless Services, Aviation
Communications Division, a Delaware corporation,) having its
principal place of business at 1100 Second Avenue, Suite 300,
Seattle, Washington 98101 ("Seller"),
_____________
AT&T Wireless Services. – Tampa, FL 33607
Attention: Richard R. Rohde
Facsimile: (425) 453-7350
To Seller at: AT&T Aviation Communications Group, Inc.
D/b/a/ AT&T Wireless Services.
Aviation Communications Division
1100 Second Avenue, Suite 200
Seattle, Washington 98101
Attention: Legal Department
Facsimile: (206) 515-8259
With a Copy to:
_____________
AT&T Wireless Services, – Coi
411-108th Avenue NE, Suite 1800
Bellevue, WA 98004
Attention: Richard R. Rohde
Facsimile: (425) 453-7350
With a Copy also to:
AT&T Wireless Services, Inc.
16221 NE 72nd Way
Redmond, WA 98052
Attn: Vice President and Chief Counsel -
Technology Development, Network Services & Intellectual Property
Facsimile: (425)
_____________
AT&T Wireless Services, – have entered into this Agreement
as of the date first set forth above.
"SELLER" AT&T AVIATION COMMUNICATIONS GROUP, INC.,
doing business as AT&T Wireless Services,
Aviation Communications Division
BY: /s/Christopher E. Nelson
----------------------------------------------------
PRINTED NAME: Christopher E. Nelson
TITLE: V. P & C.O.O.
"BUYER" SKY WAY
_____________
AT&T Wireless Services, – Sale is made and entered into as of January ,
2003, by and between Claircom Communications Group, Inc. A
Delaware Corporation, doing business as AT&T Wireless Services,
Aviation Communications Division, ("Sell") and Sky Way Aircraft,
Inc., a Nevada corporation ("Buyer"), pursuant to that certain
Asset Purchase Agreement by and
_____________
dt 158600
;
| Sky Way Aircraft Inc
|
Preview
Full Doc
| 2002 |
Asset Purchase Agreement
Asset Purchase Agreement (166K)
Doc #269743: Click preview link for longer preview.
ASSET PURCHASE AGREEMENT
AGREEMENT dated as of January 14, 2002 among Netro Corporation, a
Delaware corporation ("BUYER"), AAS, Inc., a Delaware corporation and a
wholly-owned subsidiary of Buyer ("ACQUISITION SUBSIDIARY"), and AT&T Wireless
Services, Inc., a Delaware corporation ("SELLER"),
W I T N E S S E T H :
WHEREAS, Seller is engaged in a business referred to as Project Angel,
relating to the development, manufacture and assembly of certain fixed wireless
equipment including the Products (as defined below) (the "BUSINESS");
WHEREAS, Buyer desires to purchase from Seller, and Seller desires to
sell to Buyer, certain assets of Seller relating to the Business, subject to the
assumption of certain liabilities, upon the terms and subject to the conditions
set forth herein;
WHEREAS, Buyer has formed Acquisition Subsidiary for the purpose of
acquiring such assets and assuming such liabilities, upon the terms and subject
to the conditions set forth herein;
WHEREAS, Buyer desires to license from Seller, and Seller desires to
license to Buyer, intellectual property related to the Products on the terms and
conditions set forth in the Intellectual Property Agreement (as defined below);
WHEREAS, Buyer and Seller desire to enter into a strategic alliance on
the terms and conditions set forth in the Strategic Alliance Agreement (as
defined below).
NOW, THEREFORE, in consideration of the representations, warranties,
covenants and agreements contained in this Agreement and other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties agree as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01 . Definitions.
(a) The following terms, as used herein, have the following meanings:
Page 8 of 68
{PAGE}
"ACQUISITION" means the acquisition of the Purchased Assets and the
Intangible Assets and the assumption of the Assumed Contract by Acquisition
Subsidiary and the license of certain intellectual property related to the
Products pursuant to the Intellectual Property Agreement.
"AFFILIATE" means, with respect to any Person, any other Person directly
or indirectly controlling, controlled by, or under common control with such
other Person.
"ANCILLARY AGREEMENTS" means, the Lease Assignment and Assumption
Agreement, the Intellectual Property Agreement and the Assignment and Assumption
Agreement thereunder, the Strategic Alliance Agreement, the Registration Rights
Agreement and the Interim Services Agreement.
"BUYER BALANCE SHEET" means the consolidated balance sheet of Buyer as
of September 30, 2001 and the footnotes therein set forth in the Buyer's
quarterly report on Form 10-Q for its fiscal quarter ended September 30, 2001.
"BUYER BALANCE SHEET DATE" means September 30, 2001.
"BUYER DISCLOSURE SCHEDULES" means the schedules prepared and delivered
by Buyer and dated as of the date hereof which set forth the exceptions to
Buyer's and Acquisition Subsidiary's representations and warranties contained
herein and certain other information called for by this Agreement.
"BUYER MATERIAL ADVERSE EFFECT" means a material adverse effect on (x)
the business, assets or results of operations of Buyer and its Subsidiaries,
taken as a whole, or (y) the ability of Buyer or Acquisition Subsidiary to
perform its obligations under this Agreement and the Ancillary Agreements,
except, in each case, any such effect resulting from or arising in connection
with (i) this Agreement, the Ancillary Agreements, or the transactions
contemplated hereby and thereby or the announcement or pendency thereof, (ii)
changes or conditions affecting Buyer's industry generally or (iii) changes in
economic, regulatory or political conditions generally; provided that any change
in the market price of the Buyer Common Stock shall not be taken into account in
determining whether a Buyer Material Adverse Effect has occurred.
"BUYER'S KNOWLEDGE" means the actual knowledge of Gideon Ben-Efraim,
President and Chief Executive Officer, and Sanjay Khare, Chief Financial
Officer.
"CERCLA" means the Comprehensive Environmental Response, Compensation
and Liability Act of 1980, as amended, and any rules or regulations promulgated
thereunder.
"CLOSING DATE" means the date of the Closing.
Page 9 of 68
{PAGE}
"EMPLOYMENT AGREEMENT" means an employment agreement between Buyer and a
person identified on Exhibit D as a "key employee," offering employment with
Buyer to such person subject to consummation of the Closing.
"ENVIRONMENTAL LAW" means any federal, state, local or foreign law
(including, without limitation, common law), treaty, judicial decision,
regulation, rule, judgment, order, decree, injunction, permit or governmental
restriction or any agreement of any governmental authority or other third party
relating to the environment, human health and safety or to pollutants,
contaminants, wastes or chemicals or any toxic, radioactive, ignitable,
corrosive, reactive or otherwise hazardous substances, wastes or materials.
"ENVIRONMENTAL LIABILITIES" means any and all liabilities arising in
connection with or in any way relating to the ownership or operation (by Seller
or any predecessor of Seller with respect to the Business) of the Business (as
currently or previously conducted by Seller or any predecessor of Seller with
respect to the Business) or the Purchased Assets or relating to any activities
or operations by Seller (or any predecessor of Seller with respect to the
Business) occurring or conducted at the Real Property or at any site formerly
owned or operated in connection with the Business (including, without
limitation, offsite disposal), whether accrued, contingent, absolute,
determined, determinable or otherwise, which (i) arise under or relate to any
Environmental Law and (ii) relate to actions occurring or conditions existing on
or prior to the Closing Date (including, without limitation, any matter
disclosed or required to be disclosed in Seller Disclosure Schedule 3.16).
"ENVIRONMENTAL PERMITS" means all permits, licenses, franchises,
certificates, approvals and other similar authorizations of governmental
authorities relating to or required by Environmental Laws and affecting, or
relating in any way to, the PRC Assets.
"HAZARDOUS SUBSTANCES" means any pollutant, contaminant, waste or
chemical or any toxic, radioactive, ignitable corrosive, reactive or otherwise
hazardous substance, waste or material or any substance, waste or material
having any constituent elements displaying any of the foregoing characteristics
including, without limitation, petroleum, its derivatives, by-products and other
hydrocarbons, as so regulated under any Environmental Law.
"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"INTELLECTUAL PROPERTY AGREEMENT" means the Intellectual Property
Agreement between Seller and Buyer in the form attached hereto as Exhibit F.
Page 10 of 68
{PAGE}
"INTELLECTUAL PROPERTY RIGHTS" means (i) inventions, whether or not
patentable, reduced to practice or made the subject of one or more pending
patent applications, (ii) national and multinational statutory invention
registrations, patents and patent applications (including all reissues,
divisions, continuations, continuations-in-part, extensions and reexaminations
thereof) registered or applied for in the United States and all other nations
throughout the world, all improvements to the inventions disclosed in each such
269743
|
AT&T Wireless
As referenced in this Asset Purchase Agreement:
AT&T Wireless
Services, – 2002 among Netro Corporation, a
Delaware corporation ("BUYER"), AAS, Inc., a Delaware corporation and a
wholly-owned subsidiary of Buyer ("ACQUISITION SUBSIDIARY"), and AT&T Wireless
Services, Inc., a Delaware corporation ("SELLER"),
W I T N E S S E T H :
WHEREAS, Seller is engaged in a business
_____________
AT&T Wireless Services, – Davis Polk & Wardwell
1600 El Camino Real
Menlo Park, CA 94025
Attention: Francis S. Currie
Fax: (650) 752-2114
if to Seller, to:
AT&T Wireless Services, Inc.
7277 164th Avenue NE,
Building 1
Redmond, Washington 98052
Attention: General Counsel
Fax: (425) 702-2811
with a copy to:
AT&
_____________
AT&T Wireless Services, – Wireless Services, Inc.
7277 164th Avenue NE,
Building 1
Redmond, Washington 98052
Attention: General Counsel
Fax: (425) 702-2811
with a copy to:
AT&T Wireless Services, Inc.
7277 164th Avenue NE,
Building 1
Redmond, Washington 98052
Attention: Vice President and Chief Counsel - Intellectual
Property
Fax: (425) 580-8333
_____________
AT&T WIRELESS SERVICES, – authorized officers as of the day and year
first above written.
NETRO CORPORATION
By: ___________________________________
Name:
Title:
AAS, INC.
By: ___________________________________
Name:
Title:
AT&T WIRELESS SERVICES, INC.
By: ___________________________________
Name:
Title:
[SIGNATURE PAGE TO ASSET PURCHASE AGREEMENT]
Page 51 of 68
{PAGE}
Exhibit 2. Form of Registration Rights
_____________
AT&T Wireless Services, – the "AGREEMENT") is made effective
as of _________, 2002 (the "EFFECTIVE DATE"), by and between Netro Corporation,
a Delaware corporation (the "COMPANY"), and AT&T Wireless Services, Inc., a
Delaware corporation (the "SHAREHOLDER").
RECITALS
A. The Company and Shareholder are parties to an Asset Purchase
Agreement dated the date
_____________
dt 179798
;
Goldman, Sachs
As referenced in this Asset Purchase Agreement:
Goldman, Sachs & Co. – that would require disclosure pursuant to Item 103 of
Regulation S-K under the Exchange Act.
SECTION 4.12. Finders' Fees. Except for Goldman, Sachs & Co. , whose
fees will be paid by Buyer, there is no investment banker, broker, finder or
other intermediary that has been retained by
_____________
dt 169528
;
Davis Polk
As referenced in this Asset Purchase Agreement:
Davis Polk – the purchase and
sale of the Purchased Assets and the assumption of the Assumed Contract
hereunder shall take place at the offices of Davis Polk & Wardwell, 1600 El
Camino Real, Menlo Park, California, on February 4, 2002, or, if all the
conditions in Article 10 shall not
_____________
Davis Polk – Netro Corporation
3860 North First Street
San Jose, CA 95134-1702
Attention: Chief Financial Officer
Fax: (408) 216-1772
with a copy to:
Davis Polk & Wardwell
1600 El Camino Real
Menlo Park, CA 94025
Attention: Francis S. Currie
Fax: (650) 752-2114
if to Seller, to:
AT&
_____________
Davis Polk – 1555
Attn: Chief Financial Officer
or at such other address as the Company shall have furnished to the
Holders, with a copy to:
Davis Polk & Wardwell
1600 El Camino Real
Menlo Park, CA 94025
Attn: Francis S. Currie, Esq.
Fax: (650) 752-2111
(c) if to any
_____________
dt 159054
;
|
Perkins Coie
As referenced in this Asset Purchase Agreement:
Perkins Coie – Avenue NE,
Building 1
Redmond, Washington 98052
Attention: Vice President and Chief Counsel - Intellectual
Property
Fax: (425) 580-8333
and a copy to:
Perkins Coie LLP
1201 Third Avenue, Suite 4800
Seattle, Washington 98101
Attention: Eric DeJong
Fax: (206) 583-8500
All such notices, requests and other
_____________
Perkins Coie – be bound
by the terms of this Agreement and (C) in the opinion of counsel satisfactory to
the Company (it being agreed that Perkins Coie LLP is counsel satisfactory to
the company), the transfer may be made without registration under the Securities
Act.
Page 54 of 68
{
_____________
dt 170990
;
Netro Corporation;
AAS, Inc.
|
Preview
Full Doc
| 2003 |
Brand License Agreement
Brand License Agreement (4K)
Doc #269663: Click preview link for longer preview.
AMENDMENT TO JUNE 4, 2001
BRAND LICENSE AGREEMENT
BETWEEN AT&T CORP. AND AT&T WIRELESS SERVICES, INC.
The June 4, 2001 Brand License Agreement between AT&T Corp. ("Licensor")
and AT&T Wireless Services, Inc. ("Licensee") (the "Agreement") is hereby
amended as . . .
269663
|
AT&T Wireless
As referenced in this Brand License Agreement:
AT&T WIRELESS SERVICES, – txt
{DESCRIPTION}EXHIBIT 10.4
{TEXT}
{PAGE}
Exhibit 10.4
AMENDMENT TO JUNE 4, 2001
BRAND LICENSE AGREEMENT
BETWEEN AT&T CORP. AND AT&T WIRELESS SERVICES, INC.
The June 4, 2001 Brand License Agreement between AT&T Corp. ("Licensor")
and AT&T Wireless Services, Inc. ("Licensee") (the "Agreement")
_____________
AT&T Wireless Services, – BETWEEN AT&T CORP. AND AT&T WIRELESS SERVICES, INC.
The June 4, 2001 Brand License Agreement between AT&T Corp. ("Licensor")
and AT&T Wireless Services, Inc. ("Licensee") (the "Agreement") is hereby
amended as follows:
1. Sections 10.2 and 10.3 of the Agreement are deleted in
_____________
AT&T WIRELESS SERVICES, – 3. Intentionally Left Blank.
The remainder of the Agreement shall remain in full force and effect.
AT&T CORP.
By
----------------------------------
Name:
Title:
Date:
AT&T WIRELESS SERVICES, INC.
By
----------------------------------
Name:
Title:
Date: May 21, 2003
{/TEXT}
{/DOCUMENT}
_____________
dt 179729
;
|
AT&T
As referenced in this Brand License Agreement:
AT&T CORP – SEQUENCE}6
{FILENAME}v93885exv10w4.txt
{DESCRIPTION}EXHIBIT 10.4
{TEXT}
{PAGE}
Exhibit 10.4
AMENDMENT TO JUNE 4, 2001
BRAND LICENSE AGREEMENT
BETWEEN AT&T CORP . AND AT&T WIRELESS SERVICES, INC.
The June 4, 2001 Brand License Agreement between AT&T Corp. ("Licensor")
and AT&T Wireless
_____________
AT&T Corp – 4, 2001
BRAND LICENSE AGREEMENT
BETWEEN AT&T CORP. AND AT&T WIRELESS SERVICES, INC.
The June 4, 2001 Brand License Agreement between AT&T Corp . ("Licensor")
and AT&T Wireless Services, Inc. ("Licensee") (the "Agreement") is hereby
amended as follows:
1. Sections 10.2 and 10.3
_____________
AT&T CORP – 3 shall now read as follows:
10.3. Intentionally Left Blank.
The remainder of the Agreement shall remain in full force and effect.
AT&T CORP .
By
----------------------------------
Name:
Title:
Date:
AT&T WIRELESS SERVICES, INC.
By
----------------------------------
Name:
Title:
Date: May 21, 2003
{/TEXT}
{/DOCUMENT}
_____________
dt 177627
|
Preview
Full Doc
| 2001 |
Brand License Agreement
Brand License Agreement (158K)
Doc #269846: Click preview link for longer preview.
BRAND LICENSE AGREEMENT
BETWEEN
AT&T CORP.
AND
AT&T WIRELESS SERVICES, INC.
DATED AS OF
JUNE 4, 2001
{PAGE} 2
TABLE OF CONTENTS
-----------------
{TABLE}
{CAPTION}
{S} {C}
1. DEFINITIONS...............................................................................................1
-- -----------
"ADDITIONAL MOBILE WIRELESS SERVICES"........................................................................1
-------------------------------------
"AFFILIATE"..................................................................................................2
-----------
"AIRCRAFT TO GROUND SERVICE".................................................................................2
----------------------------
"ANCILLARY WIRELESS SERVICES"................................................................................2
-----------------------------
"APPROVAL"...................................................................................................3
----------
"AT&T LICENSEES".............................................................................................3
----------------
"AUTHORIZED DEALERS".........................................................................................3
--------------------
"BANKRUPTCY".................................................................................................3
------------
"BROADBAND"..................................................................................................4
-----------
"BROADBAND EXCLUSIVE TERRITORIES"............................................................................4
---------------------------------
"CHANGE OF CONTROL"..........................................................................................6
-------------------
"CO-MARKETING"...............................................................................................6
--------------
"CORPORATE ACCOUNTS".........................................................................................6
--------------------
"DEDICATED WIRELESS DEVICES".................................................................................6
----------------------------
"DEDICATED WIRELESS PORTALS".................................................................................7
----------------------------
"DISTRIBUTION DATE"..........................................................................................7
-------------------
"DMA"........................................................................................................7
-----
"ENFORCEMENT ACTION".........................................................................................7
--------------------
"ENFORCEMENT BUDGET".........................................................................................7
--------------------
"FCC"........................................................................................................7
-----
"FIXED WIRELESS FOOTPRINT"...................................................................................7
--------------------------
"GUIDELINES".................................................................................................7
------------
"HIGH SPEED INTERNET ACCESS SERVICES"........................................................................8
-------------------------------------
"IN BUILDING WIRELESS SERVICE"...............................................................................8
------------------------------
"INDEMNIFIED PARTY"..........................................................................................8
-------------------
"INDEMNIFYING PARTY".........................................................................................8
--------------------
"INSPECTION".................................................................................................8
------------
"LICENSED MARKS".............................................................................................8
----------------
"LICENSED SERVICES"..........................................................................................9
-------------------
"LICENSED TERRITORY".........................................................................................9
--------------------
"LICENSEE"...................................................................................................9
----------
"LICENSEE BRAND MAINTENANCE FEE"............................................................................10
--------------------------------
"LICENSEE FEE-APPLICABLE GROSS REVENUE".....................................................................10
---------------------------------------
"LICENSEE MARKS"............................................................................................10
----------------
"LICENSEE'S GROSS REVENUE"..................................................................................10
--------------------------
"LOCAL TELEPHONY SERVICES"..................................................................................10
--------------------------
"MARK"......................................................................................................10
------
"MARKETING MATERIALS".......................................................................................11
---------------------
"MOBILE WIRELESS SERVICES"..................................................................................11
--------------------------
"PERSON"....................................................................................................11
--------
"PORTALS"...................................................................................................11
---------
"PREVIOUSLY LICENSED TERRITORIES"...........................................................................11
---------------------------------
"PROMOTIONAL PRODUCTS"......................................................................................12
----------------------
{/TABLE}
-i-
{PAGE} 3
{TABLE}
{CAPTION}
{S} {C}
"QUALITY CONTROL REPRESENTATIVES"...........................................................................13
---------------------------------
"QUALITY STANDARDS".........................................................................................13
-------------------
"REGULATORY AUTHORITY"......................................................................................13
----------------------
"RESELLERS".................................................................................................13
-----------
"RESIDENTIAL"...............................................................................................13
-------------
"RESIDENTIAL FIXED WIRELESS SERVICES".......................................................................13
-------------------------------------
"SEPARATION AND DISTRIBUTION AGREEMENT".....................................................................14
---------------------------------------
"SERVICE BUNDLES"...........................................................................................14
-----------------
"SIGNIFICANT BREACH BY LICENSEE"............................................................................14
--------------------------------
"SMALL BUSINESS CUSTOMER"...................................................................................14
-------------------------
"SMALL BUSINESS FIXED WIRELESS SERVICES"....................................................................15
----------------------------------------
"SUBLICENSEE"...............................................................................................15
-------------
"SUCCESSOR".................................................................................................15
-----------
"TELEMATICS SERVICE"........................................................................................16
--------------------
"TELEMETRY SERVICE".........................................................................................16
-------------------
"TERM"......................................................................................................16
------
"TOTAL REVENUE".............................................................................................16
---------------
"TRADE DRESS"...............................................................................................16
-------------
"VALUE ADDED RESELLER"......................................................................................16
----------------------
"WIRELESS RELATED DEVICES"..................................................................................16
--------------------------
"WIRELESS RELATED PORTALS"..................................................................................17
--------------------------
2. GRANT OF LICENSE.........................................................................................17
-- ----------------
2.1 MOBILE WIRELESS SERVICES..........................................................................17
--- -------------------------
2.2 RESIDENTIAL FIXED WIRELESS SERVICES...............................................................17
--- ------------------------------------
2.3 SMALL BUSINESS FIXED WIRELESS SERVICES............................................................18
--- ---------------------------------------
2.4 PROMOTIONAL PRODUCTS..............................................................................21
--- ---------------------
2.5 WIRELESS RELATED DEVICES AND DEDICATED WIRELESS DEVICES...........................................22
--- --------------------------------------------------------
2.6 ANCILLARY WIRELESS SERVICES.......................................................................22
--- ----------------------------
2.7 WIRELESS RELATED PORTALS AND DEDICATED WIRELESS PORTALS...........................................22
--- --------------------------------------------------------
2.8 CONTENT, EQUIPMENT AND SOFTWARE...................................................................23
--- --------------------------------
2.9 TELEMATICS SERVICE AND TELEMETRY SERVICE..........................................................23
--- -----------------------------------------
2.10 IN BUILDING WIRELESS SERVICE......................................................................23
---- -----------------------------
2.11 ADDITIONAL MOBILE WIRELESS SERVICES...............................................................24
---- ------------------------------------
2.12 AIRCRAFT TO GROUND SERVICE........................................................................24
---- ---------------------------
2.13 REQUEST FOR LICENSE...............................................................................24
---- --------------------
2.14 DEDICATED WIRELESS PORTALS........................................................................25
---- ---------------------------
2.15 WIRELESS RELATED DEVICES (A) AND DEDICATED WIRELESS DEVICES (B)...................................25
---- ----------------------------------------------------------------
2.16 RESERVATION OF RIGHTS.............................................................................26
---- ----------------------
3. PAYMENTS.................................................................................................27
-- --------
3.1 BRAND MAINTENANCE FEE.............................................................................27
--- ----------------------
3.2 REFERRAL REVENUES.................................................................................30
--- ------------------
3.3 FEES DURING 2001..................................................................................30
--- -----------------
4. RESTRICTIONS ON USE OF LICENSED MARKS....................................................................31
-- -------------------------------------
4.1 RESELLERS.........................................................................................31
--- ----------
4.2 USE OF LICENSED MARKS WITH LICENSEE MARKS.........................................................31
--- ------------------------------------------
4.3 BUNDLING..........................................................................................32
--- ---------
{/TABLE}
-ii-
{PAGE} 4
{TABLE}
{CAPTION}
{S} {C}
4.4 CO-MARKETING......................................................................................33
--- -------------
4.5 GENERAL PURPOSE CREDIT CARDS......................................................................33
--- -----------------------------
4.6 DEALERS...........................................................................................33
--- --------
5. REQUESTS TO LICENSE THE BRAND............................................................................34
-- ------------------------------
5.1 REQUEST TO LICENSOR TO GRANT BRAND LICENSE........................................................34
--- -------------------------------------------
5.2 APPROVAL PROCESS..................................................................................34
--- -----------------
5.3 ROYALTIES.........................................................................................34
--- ----------
5.4 NETWORK MEMBERSHIP LICENSE AGREEMENTS.............................................................34
--- --------------------------------------
5.5 NO OTHER RIGHTS...................................................................................35
--- ----------------
6. TERM AND TERMINATION.....................................................................................35
-- --------------------
6.1 TERM..............................................................................................35
--- -----
6.2 TERMINATION.......................................................................................36
--- ------------
6.3 NOTICE OF TERMINATION.............................................................................38
--- ----------------------
6.4 EFFECT OF TERMINATION.............................................................................41
--- ----------------------
6.5 OTHER RIGHTS UNAFFECTED...........................................................................41
--- ------------------------
7. QUALITY CONTROL..........................................................................................41
-- ---------------
7.1 GENERAL...........................................................................................41
--- --------
7.2 QUALITY STANDARDS.................................................................................41
--- ------------------
7.3 QUALITY SERVICE REVIEWS; RIGHT OF INSPECTION......................................................43
--- ---------------------------------------------
7.4 AUTHORIZED DEALERS................................................................................45
--- -------------------
8. REMEDIES FOR NON-COMPLIANCE WITH QUALITY STANDARDS.......................................................45
-- --------------------------------------------------
8.1 NON-COMPLIANCE WITH QUALITY STANDARDS AND CURE....................................................45
--- -----------------------------------------------
8.2 POTENTIAL INJURY TO PERSONS OR PROPERTY...........................................................47
--- ----------------------------------------
8.3 LICENSOR'S RIGHTS TO LICENSE OTHERS...............................................................47
--- ------------------------------------
9. PROTECTION OF LICENSED MARKS.............................................................................47
-- ----------------------------
9.1 OWNERSHIP AND RIGHTS TO THE LICENSED MARKS........................................................47
--- -------------------------------------------
9.2 SIMILAR MARKS.....................................................................................50
--- --------------
9.3 INFRINGEMENT......................................................................................51
--- -------------
9.4 ENFORCEMENT OF OTHER AGREEMENTS...................................................................52
--- --------------------------------
9.5 COMPLIANCE WITH LEGAL REQUIREMENTS................................................................53
--- -----------------------------------
10. USE OF LICENSED MARKS AND OTHER MARKS................................................................54
--- -------------------------------------
10.1 LICENSEE MARKS....................................................................................54
---- ---------------
10.2 MODIFICATION OF LICENSED MARKS....................................................................55
---- -------------------------------
10.3 USE OF ADDITIONAL MARKS AT LICENSOR'S REQUEST.....................................................55
---- ----------------------------------------------
10.4 INTERNET DOMAIN NAMES.............................................................................56
---- ----------------------
10.5 RESTRICTION ON LICENSOR...........................................................................56
---- ------------------------
10.6 LICENSOR COVENANT.................................................................................56
---- ------------------
11. LIABILITY AND INDEMNIFICATION........................................................................57
--- -----------------------------
11.1 INDEMNIFICATION...................................................................................57
---- ----------------
11.2 NOTIFICATION AND DEFENSE OF CLAIMS................................................................58
---- -----------------------------------
11.3 INSURANCE.........................................................................................62
---- ----------
{/TABLE}
-iii-
{PAGE} 5
{TABLE}
{CAPTION}
{S} {C}
12. AGREEMENT PERSONAL...................................................................................63
--- ------------------
12.1 PERSONAL TO LICENSEE..............................................................................63
---- ---------------------
12.2 LICENSEE ACKNOWLEDGMENT...........................................................................63
---- ------------------------
13. RETENTION OF RIGHTS..................................................................................63
--- -------------------
14. SPONSORSHIP..........................................................................................64
--- -----------
15. CONSENT OF LICENSOR..................................................................................65
--- -------------------
16. NOTICES..............................................................................................65
--- -------
17. GOVERNMENTAL LICENSES, PERMITS AND APPROVALS.........................................................66
--- --------------------------------------------
18. APPLICABLE LAW.......................................................................................66
--- --------------
19. CONFIDENTIALITY OF INFORMATION AND USE RESTRICTION...................................................69
--- --------------------------------------------------
20. DIVESTITURE OF FIXED WIRELESS BUSINESS BY LICENSEE...................................................70
--- --------------------------------------------------
21. MISCELLANEOUS........................................................................................71
--- -------------
21.1 ENTIRE AGREEMENT..................................................................................71
---- -----------------
21.2 RELATIONSHIP OF THE PARTIES.......................................................................71
---- ----------------------------
21.3 AMENDMENTS, WAIVERS...............................................................................72
---- --------------------
21.4 ASSIGNMENT........................................................................................72
---- -----------
21.5 SPECIFIC PERFORMANCE..............................................................................72
---- ---------------------
21.6 REMEDIES CUMULATIVE...............................................................................72
---- --------------------
21.7 NO WAIVER.........................................................................................72
---- ----------
21.8 RULES OF CONSTRUCTION.............................................................................73
---- ----------------------
21.9 NO THIRD PARTY BENEFICIARIES......................................................................73
---- -----------------------------
21.10 COUNTERPARTS..................................................................................74
----- -------------
{/TABLE}
-iv-
{PAGE} 6
BRAND LICENSE AGREEMENT
BRAND LICENSE AGREEMENT (the "Agreement") dated as of June 4, 2001, by
and between AT&T Corp., a New York corporation, with offices located at 32
Avenue of the Americas, New York, N.Y. 10013 ("Licensor"), and AT&T Wireless
Services, Inc., a Delaware corporation, with offices located at 14520 NE 87th
Street, Redmond, WA 98052 (together with its Affiliates, "Licensee"). Certain
capitalized terms used herein are defined in Section 1.
WHEREAS, Licensor has, for many years, by itself and through its wholly
owned subsidiary, AT&T Wireless Services Inc., used, and Licensor desires that
Licensee have the right to use, the Licensed Marks, in connection with the
Licensed Services; and
WHEREAS, Licensee wishes to use the Licensed Marks in a limited manner
in the Licensed Territory in connection with the Licensed Services; and
WHEREAS, Licensor is willing to license and allow Licensee to use the
Licensed Marks in the Licensed Territory under the terms and conditions set
forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises and covenants
herein contained and for other good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. DEFINITIONS
"ADDITIONAL MOBILE WIRELESS SERVICES": Wireless telecommunications
services that permit subscriber mobility, which services utilize radio
frequencies licensed or authorized by the appropriate Regulatory Authority and
are:
{PAGE} 7
(i) currently offered by Licensee;
(ii) offered in the future by Licensee and made a part of this
Agreement by Licensor in accordance with Section 2.13; or
(iii) provided using Licensee's own mobile devices,
but, in each case, which are not Mobile Wireless Services, In Building Wireless
Service, Residential Fixed Wireless Services, Small Business Fixed Wireless
Services or Aircraft to Ground Service.
"AFFILIATE": As set forth in the Separation and Distribution Agreement.
"AIRCRAFT TO GROUND SERVICE": Bi-directional, aircraft-to-ground
telecommunications service, including voice and data or combinations thereof,
that is provided by Licensee over a communication path that extends through the
air from a transmitting-station to a passenger on an airborne aircraft, which
transmitting-station transmits and receives subscriber-addressed, bi-directional
communications to and from more than one addressed subscriber and wherein the
communication path is switched from one transmitting-station to another such
transmitting-station in response to movement of the aircraft.
"ANCILLARY WIRELESS SERVICES": The following products or services:
1. The marketing, provision and sale of customer care services in
support of Licensee's provision of Mobile Wireless Services,
Residential Fixed Wireless Services and Small Business Fixed
Wireless Services to its customers;
-2-
{PAGE} 8
2. The marketing, provision and sale of activation services in
support of Licensee's provision of Mobile Wireless Services to
its customers;
3. The marketing, provision, sale and distribution of prepaid
wireless calling cards that can only be used to obtain Mobile
Wireless Services, provided that, such cards clearly identify
that they can only be used to obtain Mobile Wireless Services;
and
4. The marketing, provision, sale and distribution of SIM
(Subscriber Identity Module) cards that can only be used to
obtain Mobile Wireless Services.
"APPROVAL": The granting by all appropriate Regulatory Authorities of
all necessary licenses, permits, approvals, authorizations and clearances for
this Agreement and the registration or recording of this Agreement as required
by all Regulatory Authorities.
"AT&T LICENSEES": Those Persons and business units that are part of
Licensor as of the Distribution Date and any other Persons who are licensed
under, or otherwise permitted to use, the Licensed Marks by Licensor during the
term of this Agreement.
"AUTHORIZED DEALERS": Any distributor or other agent of Licensee
authorized by Licensee to market, advertise or otherwise offer, on behalf of
Licensee, any Licensed Services under the Licensed Marks in the Licensed
Territory.
"BANKRUPTCY": With respect to a Person, means (i) the filing by such
Person of a voluntary petition seeking liquidation, dissolution, reorganization,
rearrangement or readjustment, in any form, of its debts under Title 11 of the
United States Code (or corresponding provisions of future laws) or any other
bankruptcy or insolvency law, or
-3-
{PAGE} 9
such Person's filing an answer consenting to, or acquiescing in any such
petition; (ii) the making by such Person of any assignment for the benefit of
its creditors, or the admission by such Person in writing of its inability to
pay its debts as they mature; (iii) the expiration of 60 days after the filing
of an involuntary petition under Title 11 of the United States Code (or
corresponding provisions of future laws), an application for the appointment of
a receiver for the assets of such Person, or an involuntary petition seeking
liquidation, dissolution, reorganization, rearrangement or readjustment of its
debts or similar relief under any bankruptcy or insolvency law, provided that,
the same shall not have been vacated, set aside or stayed within such 60 day
period; or (iv) the entry of an order for relief against such Person under Title
11 of the United States Bankruptcy Code.
"BROADBAND": AT&T Broadband, LLC. and MediaOne Group, Inc., and their
Affiliates.
"BROADBAND EXCLUSIVE TERRITORIES": All of the following territories:
1. Any territories in which Licensor or any of its Affiliates
owns and operates cable facilities as of the Distribution
Date, but only to the extent of the service franchise in such
territories, provided however that, with respect to the
service franchise in Dallas, Texas, the Broadband Exclusive
Territories shall not include that portion of such service
franchise that is, as of the date of the Separation and
Distribution Agreement, serviced by Licensee through its
Residential Fixed Wireless Services offer in Dallas, Texas;
2. The territories covered by the DMAs for the following cities,
provided however that, if any local service area for which
Broadband has a
-4-
{PAGE} 10
franchise is located in part within the referenced DMA and in
part outside of such DMA, then with respect to the Territory
outside of the referenced DMA the "Broadband Exclusive
Territory" shall be limited to the actual franchise area:
a. San Francisco;
b. Boston/Hartford;
c. Seattle;
d. Chicago;
e. Portland;
f. Atlanta;
g. Pittsburgh;
h. Sacramento/Fresno;
i. Denver/Front Range;
j. Salt Lake City;
k. Jacksonville;
l. South Florida;
m. Minneapolis/St. Paul; and
n. Spokane.
3. Any territories in which Licensor or any of its Affiliates
owns a substantial equity investment determined on a basis
consistent with the determination of substantial investment
for purposes of expansion of the Fixed Wireless
-5-
{PAGE} 11
Footprint in a cable facility as of the Distribution Date, but
269846
|
AT&T Wireless
As referenced in this Brand License Agreement:
AT&T WIRELESS SERVICES, – 9
{FILENAME}y47396aex10-4.txt
{DESCRIPTION}BRAND LICENSE AGREEMENT
{TEXT}
{PAGE} 1
EXHIBIT 10.4
BRAND LICENSE AGREEMENT
BETWEEN
AT&T CORP.
AND
AT&T WIRELESS SERVICES, INC.
DATED AS OF
JUNE 4, 2001
{PAGE} 2
TABLE OF CONTENTS
-----------------
{TABLE}
{CAPTION}
{S} {C}
1. DEFINITIONS...............................................................................................1
-- -----------
"ADDITIONAL MOBILE WIRELESS
_____________
AT&T Wireless
Services, – AT&T Corp., a New York corporation, with offices located at 32
Avenue of the Americas, New York, N.Y. 10013 ("Licensor"), and AT&T Wireless
Services, Inc., a Delaware corporation, with offices located at 14520 NE 87th
Street, Redmond, WA 98052 (together with its Affiliates, "Licensee"). Certain
capitalized
_____________
AT&T Wireless Services – capitalized terms used herein are defined in Section 1.
WHEREAS, Licensor has, for many years, by itself and through its wholly
owned subsidiary, AT&T Wireless Services Inc., used, and Licensor desires that
Licensee have the right to use, the Licensed Marks, in connection with the
Licensed Services; and
WHEREAS,
_____________
AT&T Wireless Services, – registered first-class mail, postage prepaid and return receipt requested in
each case to the applicable addresses set forth below:
If to Licensee:
AT&T Wireless Services, Inc.
16331 NE 72nd Way
Redmond, WA 98052
Attention: Gregory P. Landis, Esq.
Fax No.: (425) 580-8333
If to Licensor:
AT&
_____________
AT&T WIRELESS SERVICES, – as of the
date first stated above.
AT&T CORP.
By: /s/ Richard J. Martin
---------------------------------
Name: Richard J. Martin
Title: Executive Vice President
AT&T WIRELESS SERVICES, INC.
By: /s/ Robert Johnson
--------------------------------
Name: Robert Johnson
Title: Executive Vice President
-75-
{/TEXT}
{/DOCUMENT}
_____________
dt 179896
;
|
AT&T
As referenced in this Brand License Agreement:
AT&T CORP – EX-10.4
{SEQUENCE}9
{FILENAME}y47396aex10-4.txt
{DESCRIPTION}BRAND LICENSE AGREEMENT
{TEXT}
{PAGE} 1
EXHIBIT 10.4
BRAND LICENSE AGREEMENT
BETWEEN
AT&T CORP .
AND
AT&T WIRELESS SERVICES, INC.
DATED AS OF
JUNE 4, 2001
{PAGE} 2
TABLE OF CONTENTS
-----------------
{TABLE}
{CAPTION}
{S} {C}
1.
_____________
AT&T Corp – COUNTERPARTS..................................................................................74
----- -------------
{/TABLE}
-iv-
{PAGE} 6
BRAND LICENSE AGREEMENT
BRAND LICENSE AGREEMENT (the "Agreement") dated as of June 4, 2001, by
and between AT&T Corp ., a New York corporation, with offices located at 32
Avenue of the Americas, New York, N.Y. 10013 ("Licensor"), and AT&T
_____________
AT&T Corp – as set forth in
|