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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
UNDER THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 2)*
Rogers Wireless Communications Inc.
(formerly Rogers Cantel Mobile Communications Inc.)
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(Name of Issuer)
Class B Restricted Voting Shares
--------------------------------------------------------------------------------
(Title of Class of Securities)
775102205
--------------------------------------------------------------------------------
(CUSIP Number of Class of Securities)
Benjamin F. Stephens Eric DeJong
AT&T Wireless Services, Inc. with a copy to: Perkins Coie LLP
7277 164th Avenue NE, Building 1 1201 Third Avenue, 40th Floor
Redmond, WA 98052 Seattle, Washington 98101
(425) 580-6000 (206) 583-8888
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications)
July 3, 2001
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(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition that is the subject of this Schedule 13D, and is filing
this schedule because of Sections 13d-1(e), 13d-1(f) or 13d-1(g), check the
following box [ ]
Note. Schedules filed in paper format shall include a signed
original and five copies of the schedule, including all exhibits. See
Section 13d-7(b) for other parties to whom copies are to be sent.
------------
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not
be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section of
the Act but shall be subject to all other provisions of the Act (however, see
the Notes).
(Continued on following pages)
Page 1 of 9 Pages
2
SCHEDULE 13D
(AMENDMENT NO. 2)
CUSIP NO. 775102205 PAGE 2 OF 9 PAGES
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Names of Reporting Persons
1 I.R.S. Identification Nos. of above persons (entities only)
AT&T Wireless Services, Inc.
JVII
MMM Holdings, Inc.
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Check the Appropriate Box if a Member of a Group (See Instructions)
2 (a) [X]
(b) [ ]
--------------------------------------------------------------------------------
3 SEC Use Only
--------------------------------------------------------------------------------
Source of Funds
4 WC, AF (see Item 3 below)
--------------------------------------------------------------------------------
5 Check if Disclosure of Legal proceedings Is Required Pursuant to
Items 2(d) or 2(e) [ ]
--------------------------------------------------------------------------------
CITIZENSHIP OR PLACE OF ORGANIZATION
6 AT&T Wireless Services, Inc. -- Delaware
JVII -- Delaware
MMM Holdings, Inc. -- Delaware
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Sole Voting Power
NUMBER OF 7 27,647,888 Class A Multiple Voting Shares
(convertible on a 1-for-1 basis into Class B
Restricted Voting Shares)
20,946,284 Class B Restricted Voting Shares
Assuming conversion of all shares held into Class B
Restricted Voting Shares, the number of shares described
above will total 48,594,172 Class B Restricted Voting
Shares
------------------------------------------------------------
SHARES 8 Shared Voting Power -0-
BENEFICIALLY
OWNED BY ------------------------------------------------------------
EACH 9 Sole Dispositive Power
REPORTING 27,647,888 Class A Multiple Voting Shares
PERSON (convertible on a 1-for-1 basis into Class B
Restricted Voting Shares)
20,946,284 Class B Restricted Voting Shares
Assuming conversion of all shares held into Class B
Restricted Voting Shares, the number of shares described
above will total 48,594,172 Class B Restricted Voting
Shares
------------------------------------------------------------
WITH 10 Shared Dispositive Power -0-
--------------------------------------------------------------------------------
Aggregate Amount Beneficially Owned by Each Reporting Person
11 27,647,888 Class A Multiple Voting Shares (convertible on a
1-for-1 basis into Class B Restricted Voting Shares)
20,946,284 Class B Restricted Voting Shares
Assuming conversion of all shares held into Class B Restricted Voting
Shares, the number of shares described above will total 48,594,172
Class B Restricted Voting Shares
--------------------------------------------------------------------------------
12 Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
--------------------------------------------------------------------------------
13 Percent of Class Represented by Amount in Row (11)
30.7% of Class A Multiple Voting Shares
41.1% of Class B Restricted Voting Shares
Assuming conversion of all Class A Multiple Voting Shares into
Class B Restricted Voting Shares, 34.4% of the Class B Restricted
Voting Shares would be represented by the amount in Row (11).
--------------------------------------------------------------------------------
Type of Reporting Person
14
JVII -- PN
All others -- CO
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Page 2 of 9
3
This Amendment No. 2 supplements and amends, with respect to AT&T
Wireless Services, Inc. ("AT&T Wireless"), JVII and MMM Holdings, Inc. ("MMM
Holdings"), the Schedule 13D originally filed with the Securities and Exchange
Commission by JVII, AT&T Canada Investments Inc. ("AT&T Investments"), BT
(Netherlands) 1 B.V. ("BT Investments") on behalf of and for the account of BT
Longmont (Luxembourg) IV SARL, AT&T Corp ("AT&T") and British Telecommunications
plc ("BT") on August 27, 1999 (the "Original Filing"). This amendment is being
filed to reflect the split-off of AT&T Wireless from AT&T on July 9, 2001, as a
result of which AT&T Wireless became an independent, publicly traded company,
and the acquisition by MMM Holdings of BT Investments' interest in JVII, which
occurred on July 3, 2001.
ITEM 1. SECURITY AND ISSUER.
This Amendment No. 2 relates to the Class A Multiple Voting Shares and
Class B Restricted Voting Shares of Rogers Wireless Communications Inc.
(formerly Rogers Cantel Mobile Communications Inc.) (the "Issuer").
The name of the Issuer and the address of its principal executive
offices are:
Rogers Wireless Communications Inc.
333 Bloor Street East, 10th Floor
Toronto, Ontario
Canada
M4W 1G9
ITEM 2. IDENTITY AND BACKGROUND.
The information contained in the first paragraph of Item 2 of the
Original Filing is hereby amended as follows:
JVII is a general partnership organized and existing under the laws of
Delaware. Its principal business address is 7277 164th Avenue NE, Building 1,
Redmond, Washington 98052. The principal business of JVII is to serve as a
holding entity for investing in the Issuer. Each of AT&T Wireless and MMM
Holdings, a wholly owned subsidiary of AT&T Wireless, owns a 50% interest in
JVII. Prior to July 3, 2001, the interest in JVII now owned by MMM Holdings was
owned by BT Investments, a wholly owned subsidiary of BT. On July 3, 2001, MMM
Holdings purchased all of BT Investments' interest in JVII pursuant to the terms
of a Partnership Transfer Agreement, dated as of June 29, 2001, among MMM
Holdings, AT&T Wireless, AT&T, BT Investments and BT (the "MMM Holdings
Partnership Transfer Agreement"). In addition, in contemplation of the split-off
of AT&T Wireless from AT&T referred to below, pursuant to a separate Partnership
Transfer Agreement, dated as of December 29, 2000, between AT&T Investments and
AT&T Wireless (the "AT&T Wireless Partnership Transfer Agreement"), AT&T
Wireless purchased all of AT&T Investments' interest in JVII.
AT&T Wireless is a corporation organized and existing under the laws of
Delaware and has its principal business address at 7277 164th Avenue NE,
Building 1, Redmond, Washington 98052. The principal business of AT&T Wireless
is to provide wireless communications services.
MMM Holdings is a corporation organized and existing under the laws of
Delaware and has its principal business address at 7277 164th Avenue NE,
Building 1, Redmond, Washington 98052. The principal business of MMM Holdings is
to serve as a telecommunications holding company.
Page 3 of 9
4
On July 9, 2001, AT&T Wireless split-off from AT&T and became a separate
public company that owns and operates all of the businesses that constituted the
AT&T Wireless Group before the split-off. Prior to July 9, 2001, AT&T Wireless
was a wholly owned subsidiary of AT&T.
The following supplements information contained in Item 2 of the
Original Filing and provides information concerning the name, business address
and principal occupation or employment of each present director and executive
officer of AT&T Wireless (where no business address is given, the address is
that of AT&T Wireless's principal business office stated in this Item 2) and of
MMM Holdings (where no business address is given, the address is that of MMM
Holdings' principal business office stated in this Item 2):
AT&T WIRELESS DIRECTORS:
NAME PRINCIPAL OCCUPATION AND BUSINESS ADDRESS
---- -----------------------------------------
John D. Zeglis Chairman of the Board and Chief Executive Officer
of AT&T Wireless
Walter Y. Elisha Retired
205 North White St., P. O. Box 70
Fort Mill, SC 29715
Donald V. Fites Retired
Caterpillar Inc.
100 NE Adams Street
Peoria, IL 61629-9210
Ralph S. Larsen Chairman of the Board and Chief Executive Officer
of Johnson & Johnson
One Johnson and Johnson Plaza
New Brunswick, NJ 08933
John W. Madigan Chief Executive Officer of Tribune Company
435 North Michigan Avenue
Chicago, IL 60611-4001
Nobuharo Ono Executive Vice President and Senior Manager,
Mobile Multimedia Division of NTT DoCoMo, Inc.
Sanno Park Tower
2-11-1, Nagato-cho, Chiyoda-ku
Tokyo 100-6150
Wayne M. Perry Chief Executive Officer of Edge Wireless LLC
11400 SE 6th Street, Suite 100
Bellevue, WA 98004
A. Barry Rand Chairman Emeritus of Avis Group Holdings
500 Woodbine Road
Stamford, CT 06903
Carolyn M. Ticknor Retired
2150 Bluestem Lane
Boise, ID 83706
Page 4 of 9
5
AT&T WIRELESS EXECUTIVE OFFICERS:
NAME PRINCIPAL OCCUPATION AND BUSINESS ADDRESS*
---- ------------------------------------------
Michael R. Benson Senior Vice President and Chief Information Officer
Lewis W. Chakrin Senior Vice President, Corporate Strategy and
Planning
Andre Dahan President, Mobile Multimedia Services
Mohan S. Gyani President and Chief Executive Officer, AT&T
Mobility Services
William W. Hague Senior Vice President, Business Development
Robert H. Johnson Executive Vice President, National Wireless
Operations
Michael G. Keith President, AT&T Fixed Wireless Services
Gregory P. Landis Senior Vice President, General Counsel and
Corporate Secretary
D. Jane Marvin Senior Vice President, Human Resources
Joseph McCabe, Jr. Executive Vice President and Chief Financial
Officer
Roderick D. Nelson Senior Vice President and Chief Technology Officer
Philip H. Osman Executive Vice President, Mobile Multimedia
Services
Jordan M. Roderick President, International
Laurence C. Seifert Executive Vice President, AT&T Fixed Wireless
Services
Gregory L. Slemons Senior Vice President, Wireless Network Services
* The present principal occupation of all executive officers of AT&T
Wireless is with AT&T Wireless. The business address of all executive officers
is AT&T Wireless Services, Inc., 7277 164th Avenue NE, Building 1, Redmond, WA
98052.
MMM HOLDINGS DIRECTORS:
NAME PRINCIPAL OCCUPATION AND BUSINESS ADDRESS*
---- ------------------------------------------
Mohan Gyani Senior Executive Vice President and
President and Chief Executive Officer, AT&T
Mobility Services
Gregory P. Landis Senior Vice President, General Counsel and
Corporate Secretary, AT&T Wireless Services
Timothy L. McLaughlin Vice President, Controller, AT&T Wireless
Services
MMM HOLDINGS EXECUTIVE OFFICERS:
PRINCIPAL OCCUPATION AND BUSINESS
NAME OFFICE ADDRESS*
---- ------ ---------------------------------
Mohan Gyani President Senior Executive Vice President
and President and Chief Executive
Officer, AT&T Mobility Services
Gregory P. Landis Senior Vice President Senior Vice President and General
and Secretary Counsel, AT&T Wireless
J. Walter Hyer, III Vice President Vice President, Associate General
Counsel and Assistant Secretary,
AT&T Wireless
Page 5 of 9
6
Joseph McCabe, Jr. Senior Vice Executive Vice President, Chief
President, Chief Financial Officer, AT&T Wireless
Financial Officer and 150 Mount Airy Road
Treasurer Room 2590
Basking Ridge, NJ 07920
Mary Brodd Assistant Secretary Senior Corporate Counsel, AT&T
Wireless
Laurie A. Cansler Assistant Secretary Tax Director, AT&T Wireless
Linda Fisher Assistant Secretary Tax Director, AT&T Wireless
Pat Fisher Assistant Secretary Tax Director, AT&T Wireless
Meredith Garwood Assistant Secretary Tax Director, AT&T Wireless
2002 Pisgah Church Rd., Suite 300
Greensboro, NC 27455
*Except as noted, the principal business address for all MMM Holdings
directors and executive officers is 7277 164th Avenue NE, Building 1, Redmond,
WA 98052.
During the last five years, none of the Reporting Persons, nor any of
the persons listed above, has been convicted in a criminal proceeding (excluding
traffic violations or similar misdemeanors) or has been a party to a civil
proceeding of a judicial or administrative body of competent jurisdiction as a
result of which he or she was or is subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws. Each person named in this Item 2 is a citizen of the United States of
America, except Nobahuru Ono, who is a citizen of Japan.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
The information contained in Item 3 of the Original Filing is hereby
amended as follows:
Pursuant to the MMM Holdings Partnership Transfer Agreement, the
aggregate purchase price of the interest in JVII purchased by MMM Holdings from
BT Investments was US$380,229,966. The funds used by MMM Holdings in such
purchase were from working capital of AT&T, and none of the consideration for
such purchased interest was represented by borrowed funds.
Pursuant to the AT&T Wireless Partnership Transfer Agreement, the
aggregate purchase price of the interest in JVII purchased by AT&T Wireless from
AT&T Investments was US$359,720,179, which amount is payable pursuant to the
terms of a Term Sheet for Loan Agreement, dated as of December 29, 2000, between
AT&T Wireless and AT&T Investments.
On April 23, 2001, pursuant to a rights offering of the Issuer, JVII
acquired an additional 7,459,789 Class B Restricted Voting Shares for an
aggregate purchase price of US$106,210,166.87. The funds used by JVII in such
purchase were from working capital of AT&T Wireless, and none of the
consideration for such purchased interest was represented by borrowed funds.
ITEM 4. PURPOSE OF TRANSACTION.
The information contained in Item 4 of the Original Filing is hereby
amended as follows:
The purpose of the transactions described in Item 3 above is to allow
AT&T Wireless and the Issuer, two of North America's largest providers of
wireless services, to offer customers throughout Canada wireless services under
the Rogers AT&T Wireless name. Such arrangement increases AT&T Wireless's built
network North American population coverage by 28 million.
Page 6 of 9
7
(a)-(j) Pursuant to MMM Holdings' buyout of BT Investments' interest in
JVII, Alfred Mockett and Sohail Qadri, BT's representatives on the Issuer's
Board of Directors, have resigned and, to date, have not yet been replaced.
Under the Shareholders Agreement referred to below, JVII has the right to
designate two directors to fill such vacancies.
On June 14, 2001, the Issuer, Rogers Communications Inc. ("Rogers
Communications"), the majority shareholder of the Issuer, and JVII amended the
Shareholders Agreement (as defined and described in the Original Filing) (the
"Shareholders Agreement") to institute certain governance rules as a condition
of Industry Canada's(1) agreeing to issue certain spectrum licenses to Rogers
Wireless Inc. ("Rogers Wireless"). Such amendment to the Shareholders Agreement
generally requires that no meeting of the Board of Directors of the Issuer or
Rogers Wireless or the executive committee of such Boards of Directors will be
conducted unless a majority of the directors present at such meeting are
resident Canadians (as defined in the Canada Business Corporations Act), and at
least 50% of the directors present at such meeting are Independent Directors (as
defined in such amendment to the Shareholders Agreement).
On June 12, 2001, Rogers Communications, the majority shareholder of the
Issuer, announced that it is proposing to acquire all of the outstanding Class B
Restricted Voting Shares of the Issuer owned by the public (other than JVII and
Rogers Communications) in consideration for 1.1 Class B Non-voting Shares of
Rogers Communications for each of the Issuer's Class B Restricted Voting Shares
held. The transaction is proposed to be carried out as a merger of the Issuer
and Rogers Wireless Communications Inc., a newly incorporated subsidiary of
Rogers Communications. An Independent Committee of directors of the Issuer was
constituted to review the proposed transaction. The Independent Committee
retained RBC Dominion Securities Inc. ("RBC DS") as its financial advisor in
connection with the transaction and to prepare an independent valuation of the
Issuer's Class B Restricted Voting Shares. RBC DS concluded in its valuation
that the fair market value of the Issuer's Class B Restricted Voting Shares is
in the range of CDN$31.00 to CDN$36.00 per share. In addition, RBC DS concluded
that the transaction is inadequate from a financial point of view to the
minority shareholders of the Issuer. The Board of Directors of the Issuer (with
all directors abstaining, other than the members of the Independent Committee)
has recommended that shareholders of the Issuer vote against the proposed
transaction at a meeting of the shareholders to be held on September 11, 2001.
Pursuant to the Shareholders Agreement, JVII has an obligation to
support and not oppose a transaction of this type if certain conditions relating
to JVII's governance rights, liquidity and access to information are met. In
connection with this transaction, JVII, Rogers Communications and the Issuer are
currently negotiating amendments to the Shareholder Agreement that relate to
liquidity, governance and information rights. JVII currently expects to come to
terms with the Issuer and Rogers Communications relating to these rights.
Completion of the transaction is subject to certain conditions,
including, for example, no material adverse change in the business of the
Issuer; shareholders holding not more than 150,000 of the outstanding Restricted
Voting Shares of the Issuer shall have exercised their dissent rights under
applicable law; and receipt of approvals of shareholders of the Issuer,
including the approval by a majority of the votes cast by minority shareholders
(other than JVII and Rogers Communications) of the proposed transaction and the
waiver of certain provisions of the Minority Shareholder Protection Agreement,
dated August 7, 1991, between Rogers Communications and the Issuer.
--------
(1) Industry Canada is a Canadian governmental department that, among
other things, sets telecommunications policy.
Page 7 of 9
8
The Issuer's wholly-owned subsidiary, Rogers Wireless, operates under
the co-brand Rogers AT&T Wireless and is Canada's leading wireless
communications service provider, with approximately 2.7 million wireless voice
subscribers and offices in Canadian cities from coast to coast. Rogers AT&T
Wireless provides a complete range of wireless solutions including Digital PCS,
cellular, paging, two-way messaging, and wireless data services to a total of
more than 3.1 million customers across Canada.
Rogers Communications is Canada's national communications company
engaged in cellular, Digital PCS, paging and data communications through Rogers
AT&T Wireless; in cable television, high-speed Internet access and video
retailing through Rogers Cable Inc.; and in radio and television broadcasting,
tele-shopping, publishing and new media businesses through Rogers Media Inc.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER.
The information contained in subparagraphs (a) through (d) of Item 5 of
the Original Filing is hereby amended as follows:
(a) The responses to Items 11 and 13 on the cover page hereof that
relate to the Reporting Persons' beneficial ownership of securities of the
Issuer are incorporated herein by reference.
(b) JVII has the sole power to vote or to direct the vote and the sole
power to dispose or to direct the disposition of the shares of the Issuer held
by JVII, except as otherwise provided in the Right of First Negotiation, as
defined and discussed in Item 6 of the Original Filing, as amended.
(c) Except as described in Items 2, 3 and 4 above, none of the Reporting
Persons or any of their directors or executive officers has effected any
transactions in the Class B Restricted Voting Shares or the Class A Multiple
Voting Shares of the Issuer during the past 60 days.
(d) No other person is known by the Reporting Persons to have the right
to receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of the Issuer's securities identified in this Item 5.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO
SECURITIES OF THE ISSUER.
The information contained in Item 6 of the Original Filing is hereby
supplemented as follows:
See Item 2 above with respect to the MMM Holdings Partnership Transfer
Agreement and the AT&T Wireless Partnership Transfer Agreement, the descriptions
of which are herein incorporated by reference to Item 2.
In connection with the MMM Holdings' Partnership Transfer Agreement, BT
Investments, MMM Holdings, AT&T Wireless, AT&T and BT entered into the
Conveyance, Release and Indemnity Agreement, dated June 29, 2001, which
generally provides for the conveyance of BT Investments' interest in JVII to MMM
Holdings, and for the release and indemnity of various parties as a result of
such transfer.
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS.
The following documents are filed as exhibits to this Amendment No. 2 to
Schedule 13D:
Exhibit A: Partnership Transfer Agreement, dated as of
June 29, 2001, by and among MMM Holdings, AT&T Wireless,
AT&T, BT Investments and BT
Page 8 of 9
9
Exhibit B: Partnership Transfer Agreement, dated as of
December 29, 2000, between AT&T Wireless and AT&T
Investments
Exhibit C: Term Sheet for Loan Agreement, dated as of
December 29, 2000, between AT&T Wireless and AT&T Canada
Investments, Inc.
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
JVII
By: AT&T Wireless Services, Inc.
Its: Partner
Date: August 14, 2001 /s/ Jordan Roderick
------------------------------------------
By: Jordan Roderick
---------------------------------------
Title: President, International
------------------------------------
And by: MMM Holdings, Inc.
Its: Partner
Date: August 20, 2001 /s/ Gregory P. Landis
------------------------------------------
By: Gregory P. Landis
---------------------------------------
Title: Senior Vice President and Secretary
------------------------------------
AT&T WIRELESS SERVICES, INC.
Date: August 14, 2001 /s/ Jordan Roderick
------------------------------------------
By: Jordan Roderick
---------------------------------------
Title: President, International
------------------------------------
MMM HOLDINGS, INC.
Date: August 20, 2001 /s/ Gregory P. Landis
------------------------------------------
By: Gregory P. Landis
---------------------------------------
Title: Senior Vice President and Secretary
------------------------------------
Page 9 of 9
10
EXHIBIT A
PARTNERSHIP TRANSFER AGREEMENT
THIS PARTNERSHIP TRANSFER AGREEMENT, made as of June 29, 2001 is
by and between MMM Holdings, Inc. a corporation incorporated under the laws of
Delaware (the "PURCHASER"); the Purchaser's sole shareholder, AT&T Wireless
Services, Inc., a corporation incorporated under the laws of Delaware ("AWS");
AWS' sole shareholder, AT&T Corp., a corporation incorporated under the laws of
New York ("AT&T"); BT Longmont (Luxembourg) IV SARL, a corporation incorporated
under the laws of Luxembourg (the "SELLER"); and, the Seller's sole shareholder,
British Telecommunications plc, a corporation incorporated under the laws of
England ("BT").
WHEREAS, AWS and the Seller together own all of the units of the
AT&T BT Canada JVII General Partnership, a Delaware general partnership ("JVII
PARTNERSHIP"); and
WHEREAS, AWS and BT have determined that it is in their mutual
best interests to transfer all of the Seller's partnership interest in JVII
Partnership (the "PARTNERSHIP INTEREST") from the Seller to the Purchaser; and
WHEREAS, in order to effect the transfer of the Partnership
Interest, the Seller desires to sell, and the Purchaser desires to purchase, the
Partnership Interest for the Purchase Price (as defined below).
NOW, THEREFORE, in consideration of the premises contained herein
(the sufficiency of which is hereby acknowledged by the parties hereto
(individually, a "Party" and collectively, the "Parties")), the Parties,
intending to be legally bound, agree as follows:
ARTICLE 1
DEFINITIONS AND INTERPRETATIONS
1.1 DEFINITIONS
Capitalized terms used herein and not otherwise defined shall
have the respective meanings assigned to them on Appendix A.
1.2 HEADINGS
The division of this Agreement into articles, sections,
appendices and schedules and the insertion of headings are for convenience of
reference only and shall not affect the construction or interpretation of this
Agreement. The article, section and appendix headings in this Agreement are not
intended to be full or precise descriptions of the text to which they refer and
are not to be considered part of this Agreement. All uses of the words "hereto",
"herein," "hereof," "hereby" and "hereunder" and similar expressions refer to
this Agreement and not to any particular section or portion of it. References to
an Article, Section or Appendix refer to the applicable article, section or
appendix of this Agreement.
11
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1.3 NUMBER AND GENDER
In this Agreement, words in the singular include the plural and
vice-versa and words in one gender include all genders.
1.4 ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between the
Parties pertaining to the subject matter hereof and supersede all prior
agreements, negotiations, discussions and understandings, written or oral,
between the Parties. There are no representations, warranties, conditions, other
agreements or acknowledgements, whether direct or collateral, express or
implied, that form part of or affect this Agreement, or which induced any Party
to enter into this Agreement or on which reliance is placed by any Party, except
as specifically set forth in this Agreement.
1.5 AMENDMENT
This Agreement may be amended, modified or supplemented only by a
written agreement signed by each Party.
1.6 WAIVER OF RIGHTS
Any waiver of, or consent to depart from, the requirements of any
provision of this Agreement shall be effective only if it is in writing and
signed by the Party giving it, and only in the specific instance and for the
specific purpose for which it has been given. No failure on the part of any
Party to exercise, and no delay in exercising, any right under this Agreement
shall operate as a waiver of such right. No single or partial exercise of any
such right shall preclude any other or further exercise of such right or the
exercise of any other right.
1.7 APPLICABLE LAW
This Agreement shall be governed by, and interpreted and enforced
in accordance with, the laws in force in the state of Delaware (excluding any
conflict of laws rule or principle which might refer such interpretation to the
laws of another jurisdiction). Each Party irrevocably submits to the
jurisdiction of the courts of Delaware with respect to any matter arising
hereunder or related hereto.
ARTICLE 2
PURCHASE AND SALE
On the terms and subject to the conditions set forth herein, at a
closing (the "CLOSING") to be held at 3:00 o'clock in the forenoon (Netherlands
time) on the 29th day of June, 2001 (the "CLOSING TIME") at the offices of BT
(Netherlands Holdings BV or such other time or location as the Parties shall
mutually agree, the Seller shall sell, convey, transfer, assign and deliver to
the Purchaser, and the Purchaser shall purchase from the Seller, all of the
Seller's right, title and interest in and to the Partnership Interest. At the
Closing Time, the Seller shall
12
-3-
withdraw and dissociate as a Partner and the Purchaser shall be admitted
simultaneously therewith as a Partner.
ARTICLE 3
PURCHASE PRICE
The purchase price for the Partnership Interest shall be
US$380,229,966 (the "PURCHASE PRICE"). The Purchaser shall pay the Purchase
Price to the Seller, or as the Seller directs, at the Closing Time by wire
transfer of immediately available funds. In connection with the determination of
the Purchase Price, the Seller and BT have made such inquiries and conducted
such reviews as they, in their sole discretion, have determined to be necessary
and appropriate thereto.
ARTICLE 4
REPRESENTATIONS AND WARRANTIES
4.1 REPRESENTATIONS AND WARRANTIES OF THE SELLER AND BT
The Seller and BT each represent and warrant to the Purchaser on
a joint and several basis as set out below in this Section 4.1 and acknowledge
that the Purchaser is relying upon each representation and warranty provided by
the Seller and BT in agreeing to purchase the Partnership Interest:
(a) The Seller is a corporation duly incorporated and validly
existing under the laws of Luxembourg. No proceedings have been
taken or authorized by the Seller or, to the best of its
knowledge, by any other Person, with respect to the bankruptcy,
insolvency, liquidation, dissolution or winding-up of the Seller.
(b) Each of the Seller and BT has all necessary corporate power and
capacity to execute and deliver, and to observe and perform its
respective covenants and obligations under, this Agreement. Each
of the Seller and BT has taken all corporate action necessary to
authorize the execution and delivery, and the observance and
performance, of its respective covenants and obligations under
this Agreement.
(c) This Agreement has been duly executed and delivered by the Seller
and BT and constitutes a valid and binding obligation of the
Seller and BT enforceable against each of the Seller and BT in
accordance with its terms.
(d) The Seller is the legal and beneficial owner of all of the
Partnership Interest free and clear of all Encumbrances except as
provided for in the Partnership Agreement.
(e) No consent, approval or authorization of any Person which is not
a Governmental Authority, or any non-Canadian Governmental
Authority, is required to be obtained by the Seller or BT prior
to the Closing in connection with:
13
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(i) the execution and delivery by the Seller and BT of this
Agreement; or
(ii) the observance and performance by the Seller and BT of
their respective obligations under this Agreement.
4.2 REPRESENTATIONS AND WARRANTIES OF THE PURCHASER AND AWS
The Purchaser and AWS each represent and warrant to the Seller on
a joint and several basis as set out below in this Section 4.2 and acknowledges
that the Seller is relying upon each representation and warranty provided by the
Purchaser and AWS in agreeing to sell the Partnership Interest:
(a) The Purchaser is a corporation duly incorporated and validly
existing under the laws of Delaware. No proceedings have been
taken or authorized by the Purchaser or AWS or, to the best of
the Purchaser's knowledge, by any other Person, with respect to
the bankruptcy, insolvency, liquidation, dissolution or
winding-up of the Purchaser.
(b) Each of the Purchaser and AWS has all necessary corporate power
and capacity to execute and deliver, and to observe and perform
its respective covenants and obligations under, this Agreement.
Each of the Purchaser and AWS has taken all action necessary to
authorize the execution and delivery, and the observance and
performance, of its respective covenants and obligations under
this Agreement.
(c) This Agreement has been duly executed and delivered by the
Purchaser and AWS and constitutes a valid and binding obligation
of the Purchaser and AWS enforceable against each of the
Purchaser and AWS in accordance with its terms.
(d) No consent, approval or authorization of any Person which is not
a Governmental Authority, or any non-Canadian Governmental
Authority, is required to be obtained by the Purchaser prior to
the Closing in connection with
(i) the execution and delivery by the Purchaser or AWS of
this Agreement; or
(ii) the observance and performance by the Purchaser and AWS
of their obligations under this Agreement.
4.3 REPRESENTATIONS AND WARRANTIES OF AT&T
AT&T represents and warrants to the Purchaser and the Seller as
set out below in this Section 4.3 and acknowledges that the Purchaser and the
Seller are relying upon each representation and warranty provided by AT&T in
agreeing to purchase and sell, respectively, the Partnership Interest:
(a) AT&T has all necessary corporate power and capacity to execute
and deliver, and to observe and perform its covenants and
obligations under, this Agreement. AT&T has taken all action
necessary to authorize the execution and delivery, and
14
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the observance and performance, of its covenants and obligations
under this Agreement.
(b) This Agreement has been duly executed and delivered by AT&T and
this Agreement constitutes a valid and binding obligation of AT&T
enforceable against AT&T in accordance with its terms.
(c) No consent, approval or authorization of any Person which is not
a Governmental Authority, or any non-Canadian Governmental
Authority, is required to be obtained by AT&T prior to the
Closing in connection with:
(i) the execution and delivery by AT&T of this Agreement; or
(ii) the observance and performance by AT&T of its
obligations under this Agreement.
4.4 COMMISSION
The Purchaser and the Seller each represents and warrants to the
other that such other Party will not be liable for any brokerage commission,
finder's fee or other similar payment in connection with the transactions
contemplated hereby because of any action taken by, or agreement or
understanding reached by, the Party making such representation and warranty.
4.5 NON-WAIVER
No investigations made by or on behalf of the Purchaser at any
time shall waive, diminish the scope of or otherwise affect any representation
or warranty made by the Seller in this Agreement.
4.6 QUALIFICATION OF REPRESENTATIONS AND WARRANTIES
Any representation or warranty made by a Party as to the
enforceability of this Agreement against such Party is subject to the following
qualifications:
(a) specific performance, injunction and other equitable remedies are
discretionary and, in particular, may not be available where
damages are considered an adequate remedy; and
(b) enforcement may be limited by bankruptcy, insolvency,
liquidation, reorganization, reconstruction and other laws
generally affecting enforceability of creditors' rights.
4.7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES
All representations, warranties, statements, covenants and
agreements made by the Parties in this Agreement shall survive the completion of
the sale of the Partnership Interests and continue without time limit.
15
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ARTICLE 5
COVENANT
5.1 ACCESS TO CERTAIN INFORMATION
Each of AWS and the Purchaser covenant and agree to provide and
to the extent it is able, to cause the Partnership to use its reasonable efforts
to cause Rogers Wireless Communications Inc. ("RWCI") to provide such
information as BT or the Seller may request, acting reasonably, in writing in
order to complete all filings and tax returns which either or both of them are
legally required to file.
ARTICLE 6
CONDITIONS PRECEDENT
6.1 PURCHASER'S CONDITIONS
The Purchaser shall be obliged to complete the Closing only if
each of the conditions precedent set out in the following subsections of this
Section 6.1 have been satisfied in full at or before the Closing Time. Each of
such conditions precedent is for the exclusive benefit of the Purchaser and the
Purchaser may waive any of them in whole or in part in writing.
6.1.1 ACCURACY OF REPRESENTATIONS AND PERFORMANCE OF COVENANTS
At the Closing, all of the representations and warranties of the
Seller and BT made in or pursuant to this Agreement shall be true and correct in
all material respects as if made at the Closing Time (regardless of the date as
of which the information in this Agreement or in any other document made
pursuant hereto is given). At the Closing Time, the Seller and BT shall have
observed or performed in all respects all of the obligations, covenants and
agreements which each of them must perform at or before the Closing Time. The
Purchaser shall have received immediately prior to the Closing Time,
certificates from an officer of each of the Seller and BT certifying, to the
best of such officer's knowledge, information and belief (after due enquiry)
that the conditions in this Section 6.1.1 have been satisfied.
6.1.2 CONSENTS, APPROVALS AND AUTHORIZATIONS
All consents, approvals and authorizations required under any
applicable laws by any Governmental Authority, securities commission, stock
exchange or any other regulatory authority, or required by any Person (or
registrations, declarations, filings or recordings with any of them), for the
Closing (other than routine post-closing notifications or filings) shall have
been obtained or made on or before the Closing Time.
6.1.3 LITIGATION
No court order shall have been entered that prohibits or
restricts the Closing.
16
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6.1.4 RECEIPT OF CLOSING DOCUMENTATION
All documentation relating to the sale and purchase of the
Partnership Interest, including all corporate and/or shareholder documentation
of the Seller and BT as may be required to convey the Partnership Interest to
the Purchaser, or otherwise relating to the due authorization and completion of
such sale and purchase, and all actions and proceedings taken on or prior to the
Closing in connection with the performance by the Seller and BT of their
respective obligations under this Agreement shall be satisfactory to the
Purchaser and its counsel, acting reasonably. The Purchaser shall have received
copies of all such documentation or other evidence as it may reasonably request
in order to establish the consummation of the transactions contemplated hereby
and the taking of all corporate proceedings in connection therewith in form (as
to certification and otherwise) and substance satisfactory to the Purchaser and
its counsel, acting reasonably.
6.1.5 DIRECTORS AND OFFICERS
At the Closing Time, all directors and officers of RWCI, Rogers
Wireless Inc. and any material subsidiary of RWCI (collectively, the
"COMPANIES") who are "BT Nominees", as such term is defined in the Partnership
Agreement (as hereinafter defined), shall submit a resignation from all
positions with the Companies, as applicable.
6.1.6 SECTION 116 CERTIFICATE
At the Closing Time, the Seller shall have delivered a valid
certificate issued by the Minister of National Revenue under section 116(2) of
the Income Tax Act (Canada) having a certificate limit of not less than the
Purchase Price.
6.1.7 LETTER AGREEMENT
The letter agreement between AWS BT, JVII, Rogers Communications
Inc. ("RCI") and RWCI respecting the consent of RWCI to the distribution of a
majority of the stock of AWS to shareholders of AT&T (the "SPLIT-OFF") and the
acquisition of the Partnership Interest by the Purchaser shall have been
executed and delivered.
6.1.8 CONVEYANCE, RELEASE AND INDEMNITY AGREEMENT
The conveyance, release and indemnity agreement between AWS, BT,
the Seller, the Purchaser and AT&T in the form of Appendix B shall have been
executed and delivered.
6.2 SELLER'S CONDITIONS
The Seller shall be obliged to complete the Closing only if each
of the conditions precedent set out in the following subsections of this Section
6.2 have been satisfied in full at or before the Closing Time. Each of such
conditions precedent is for the exclusive benefit of the Seller and the Seller
may waive any of them in whole or in part in writing.
17
-8-
6.2.1 ACCURACY OF REPRESENTATIONS AND PERFORMANCE OF COVENANTS
At the Closing, all of the representations and warranties of the
Purchaser and AWS made in or pursuant to this Agreement shall be true and
correct in all material respects as if made at the Closing Time (regardless of
the date as of which the information in this Agreement or in any appendix or
other document made pursuant hereto is given). At the Closing Time, the
Purchaser and AWS shall have observed or performed in all respects all of the
obligations, covenants and agreements which each of them must perform at or
before the Closing Time. The Seller shall have received immediately prior to the
Closing Time, certificates from an officer of each of the Purchaser and AWS
certifying, to the best of such officer's knowledge, information and belief
(after due enquiry) that the conditions in this Section 6.2.1 have been
satisfied.
6.2.2 CONSENTS, APPROVALS AND AUTHORIZATIONS
All consents, approvals and authorizations required under any
applicable laws by any Governmental Authority, securities commission, stock
exchange or any other regulatory authority, or required by any Person (or
registrations, declarations, filings or recordings with any of them), for the
Closing (other than routine post-closing notifications or filings) shall have
been obtained or made on or before the Closing Time.
6.2.3 LITIGATION
No court order shall have been entered that prohibits or
restricts the Closing.
6.2.4 RECEIPT OF CLOSING DOCUMENTATION
All documentation relating to the sale and purchase of the
Partnership Interest, including all corporate and/or shareholder documentation
of the Purchaser and AWS as may be required to convey the Partnership Interest
to the Purchaser, or otherwise relating to the due authorization and completion
of such sale and purchase, and all actions and proceedings taken on or prior to
the Closing in connection with the performance by the Purchaser, AT&T and AWS of
their respective obligations under this Agreement shall be satisfactory to the
Seller and its counsel, acting reasonably. The Seller shall have received copies
of all such documentation or other evidence as it may reasonably request in
order to establish the consummation of the transactions contemplated hereby and
the taking of all corporate proceedings in connection therewith in form (as to
certification and otherwise) and substance satisfactory to the Seller and its
counsel, acting reasonably.
6.2.5 AT&T REPRESENTATIONS AND WARRANTIES
At the Closing, all of the representations and warranties of AT&T
made in or pursuant to this Agreement shall be true and correct in all material
respects as if made at the Closing Time (regardless of the date as of which the
information in this Agreement or in any appendix or other document made pursuant
hereto is given). At the Closing Time, AT&T shall have observed or performed in
all respects all of the obligations, covenants and agreements which it must
perform at or before the Closing Time. The Seller and BT shall have received a
certificate of an officer of AT&T certifying, to the best of such officer's
knowledge, information and belief (after due enquiry) that the conditions in
this Section 6.2.6 have been satisfied.
18
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6.2.6 CONVEYANCE, RELEASE AND INDEMNITY AGREEMENT
The conveyance, release and indemnity agreement between AWS, BT,
Longmont and AT&T in the form of Appendix B shall have been executed and
delivered.
6.3 WAIVER
Any Party may waive, by written notice to the other Parties, any
condition set forth in this Article 6 which is for its benefit. No waiver by a
Party of any condition, in whole or in part, shall operate as a waiver of any
other condition.
ARTICLE 7
EXPENSES
Each Party agrees to pay all the costs and expenses incurred by
it in connection with this Agreement or the transactions contemplated hereby.
ARTICLE 8
FURTHER ASSURANCES
Each of the Parties shall use all of its commercially reasonable
efforts, after the date hereof, to take, or cause to be taken, all actions, and
to do, or cause to be done, all things, reasonably necessary, proper or
advisable under applicable laws, regulations and agreements to consummate and
make effective the transactions contemplated by this Agreement. Without limiting
the generality of the foregoing, on and after the date hereof, each Party shall
co-operate with the other Parties, and without any further consideration execute
and deliver, or use all of its commercially reasonable efforts to cause to be
executed and delivered, all instruments, including instruments of conveyance,
assignment and transfer, and to make all filings with and to give all notices
to, and to obtain all consents, approvals or authorizations of, any Governmental
Authority or any other Person under any permit, license, agreement, indenture or
other instrument and take all such other actions as such Party may reasonably be
requested to take by any other Party from time to time, consistent with the
terms of this Agreement, in order to effectuate the provisions and purposes of
this Agreement and the transfer of the Partnership Interest and the other
transactions contemplated hereby.
ARTICLE 9
CONSENTS
For the purposes of the Partnership Agreement and each other
agreement to which all or some of the Parties are a party, each of the Parties
hereby consents to the transfer of the Partnership Interest from the Seller to
the Purchaser, the withdrawal and dissociation of the Seller as a Partner in the
Partnership and the concurrent admission of the Purchaser as a Partner in the
Partnership, all in the manner set forth in this Agreement and, for greater
certainty, waive compliance with the provisions of the Partnership Agreement, in
respect of the sale, including, without limitation, the provisions of Section
8.2, 8.3 and 8.7 thereof, and agrees, to the extent that it is within its power
to do so, to cause the Partnership to approve and ratify the transfer, to
19
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cause the transfer to be recorded on the books of the Partnership and to
recognize the Purchaser as a partner. By executing and delivering a copy of this
Agreement, BT and the Seller:
(a) consent to the Split-Off effective as of the Closing;
(b) acknowledge and agree that the rights and obligations of
AWS under the Partnership Agreement shall not be
affected by the Split-Off; and
(c) waive, among other provisions which may be applicable,
the application of section 7.6, section 8.2 and section
8.3 of the Partnership Agreement to the Split-Off.
ARTICLE 10
COVENANT TO RENAME
AWS hereby covenants and agrees to, and to cause the Purchaser
to, take all necessary steps to change the name of JVII Partnership to a name
which does not include "BT" within 10 days after the Closing Date.
ARTICLE 11
COUNTERPARTS
This Agreement may be executed in any number of counterparts,
each of which shall be deemed to be an original, and all of which together shall
be deemed to be one and the same instrument and receipt of a facsimile version
of an executed signature page of this Agreement by a Party shall constitute
satisfactory evidence of execution of this Agreement by such Party.
ARTICLE 12
ASSIGNABILITY
This Agreement shall be binding upon and inure to the benefit of
the Parties, and their respective successors and assigns; provided, however,
that no Party may assign its respective rights or delegate its respective
obligations under this Agreement without the express prior written consent of
the other Parties.
ARTICLE 13
THIRD PARTY BENEFICIARIES
The provisions of this Agreement are solely for the benefit of
the Parties and are not intended to confer upon any Person except the Parties
any rights or remedies hereunder. There are no third party beneficiaries of this
Agreement and this Agreement shall not provide any third person with any remedy,
claim, liability, reimbursement, claim of action or other right in excess of
those existing without reference to this Agreement.
20
-11-
ARTICLE 14
NOTICES
All notices or other communications under this Agreement shall be
in writing and shall be deemed to be duly given when (a) delivered in person, or
(b) sent by telecopy (a "TRANSMISSION") or (c) deposited in the mail or private
express mail, postage prepaid, addressed as follows:
If to the Purchaser or AWS, to:
7277 164th Avenue, N.E.
Redmond, Washington, 98052
Attention: Jordan Roderick
Fax No.: (425) 580-8033
and
Attention: Yukio Morikubo
Fax No.: (425) 580-6303
If to AT&T, to:
295 North Maple Avenue
Basking Ridge, New Jersey 07920
Attention: Ms Marilyn Wasser, Vice-President-Law and Secretary
Fax No.: (908) 221-6618
If to the Seller, to:
BT Longmont (Luxembourg) IV SARL
L-2210 Luxembourg
54 Boulevard Napoleon 1er
Luxembourg
Attention: Cornelius Bechtel
Fax No.: +325 47 68 47 547 or 548
21
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If to BT, to:
British Telecommunications plc
81 Newgate Street
London, U.K.
EC1A 7AJ
Attention: Group General Counsel (Ref Karl Upstonhooper)
Fax. No.: 011 44 (207) 356-6151
and
Attention: Assistant Company Secretary
Fax No.: 011 44 (207) 356-6391
Each notice sent in accordance with this Article 14 shall be
deemed to have been received:
(a) on the day it was delivered;
(b) on the same day that it was sent by Transmission, or on the first
Business Day thereafter if the day on which the Transmission was
sent was not a Business Day or if the day on which the
Transmission was sent was a Business Day but the Transmission was
sent after 3:00 p.m. (local time of the Recipient); or
(c) on the 10th Business Day after it was mailed (excluding each
Business Day during which there existed any general interruption
of postal services in the United States of America or Luxembourg
due to strike, lock out or other cause).
Any Party may, by notice to the other Parties, change the address
to which such notices are to be given.
ARTICLE 15
SEVERABILITY
If any provision of this Agreement or the application thereof to
any Person or circumstance is determined by a court of competent jurisdiction to
be invalid, void or unenforceable, the remaining provisions hereof, or the
application of such provisions to Persons or circumstances other than those as
to which it has been held invalid or unenforceable, shall remain in full force
and effect and shall in no way be affected, impaired or invalidated thereby, so
long as the economic or legal substance of the transactions contemplated hereby
is not affected in any manner adverse to any Party. Upon such determination, the
Parties shall negotiate in good faith in an effort to agree upon such a suitable
and equitable provision to effect the original intent of the Parties.
22
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ARTICLE 16
PUBLIC ANNOUNCEMENTS
The Parties shall consult with each other before issuing any
press release or making any other public announcement with respect to this
Agreement or the transactions contemplated hereby and each of the Parties shall
use all of its reasonable commercial efforts, acting in good faith, to agree
upon a text for such statement or release which is satisfactory to all Parties.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives.
MMM HOLDINGS, INC.
By: /s/ MOHAN GYANI
------------------------------------
Name: Mohan Gyani
Title: President
By: /s/ GREGORY P. LANDIS
------------------------------------
Name: Gregory P. Landis
Title: Senior Vice President and Secretary
AT&T WIRELESS SERVICES, INC.
By: /s/ JORDAN RODERICK
------------------------------------
Name: Jordan Roderick
Title: President, International
AT&T CORP.
By: /s/ MICHAEL BERG
------------------------------------
Name: Michael Berg
Title: Assistant Secretary
23
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BT LONGMONT (LUXEMBOURG) IV SARL
By: /s/ Karl Upstar-Hooper
------------------------------------
Name: Karl Upstar-Hooper
Title: Corporate Counsel
By:
------------------------------------
Name:
Title:
BRITISH TELECOMMUNICATIONS PLC
By: /s/ Karl Upstar-Hooper
------------------------------------
Name: Karl Upstar-Hooper
Title: Corporate Counsel
By:
------------------------------------
Name:
Title:
24
APPENDIX A
DEFINITIONS
"BUSINESS DAY" means any day other than a Saturday or a Sunday or a day which is
a statutory or civic holiday in Redmond, Washington; Basking Ridge, New Jersey;
London, England; or Luxembourg.
"CANADIAN GOVERNMENTAL AUTHORITY" means any Canadian federal or Ontario court,
government, department, commission, board, bureau, agency or official.
"ENCUMBRANCE" means any encumbrance of any kind whatever and includes a security
interest, lien, pledge, hypothecation, assignment, charge, trust or deemed trust
(whether contractual, statutory or otherwise arising), a voting trust or pooling
agreement with respect to securities, an adverse claim or any other right,
option or claim of others of any kind whatever affecting the Partnership
Interest, or any covenant or other agreement, restriction or limitation on the
transfer of the Partnership Interest.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, provincial, local or
foreign or international court, government, department, commission, board,
bureau, agency, official or other regulatory, administrative or governmental
authority.
"PARTNERSHIP AGREEMENT" means that certain Amended and Restated Partnership
Agreement pertaining to JVII Partnership made as of August 16, 1999 by and
between AT&T, BT, AWS and the Seller.
"PERSON" shall mean an individual, a general or limited partnership, a
corporation, a trust, a joint venture, an unincorporated organization a limited
liability entity, any other entity and any Governmental Authority.
25
APPENDIX B
FORM OF CONVEYANCE, RELEASE AND INDEMNITY AGREEMENT
CONVEYANCE, RELEASE AND INDEMNITY AGREEMENT
This Agreement is made the 29th day of June, 2001
BETWEEN:
BT LONGMONT (LUXEMBOURG) IV SARL, a corporation incorporated
under the laws of Luxembourg;
(the "SELLER")
- and -
MMM HOLDINGS, INC., a corporation incorporated under the laws of
Delaware (the "PURCHASER")
- and -
AT&T WIRELESS SERVICES, INC., a corporation incorporated under
the laws of Delaware;
("AWS")
- and -
AT&T CORP., a corporation incorporated under the laws of New York;
("AT&T")
- and -
BRITISH TELECOMMUNICATIONS PLC, a corporation incorporated under
the laws of England; ("BT") (collectively, the "PARTIES" and
individually each a "PARTY")
RECITALS:
1. BT is the sole shareholder of the Seller.
2. The Purchaser is a wholly-owned subsidiary of AWS, which was formerly a
wholly-owned subsidiary of AT&T.
3. The Parties entered into an agreement made as of June 15, 2001 (the
"PARTNERSHIP TRANSFER AGREEMENT") pursuant to which the Seller agreed to sell to
the Purchaser, and the Purchaser agreed to purchase from the Seller, all of the
partnership interest held by the Seller in the AT&T BT Canada JVII General
Partnership, a Delaware general partnership (the "PARTNERSHIP INTEREST"), all on
the terms and subject to the conditions set out in the Partnership Transfer
Agreement.
26
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4. This Agreement is intended to constitute a general conveyance of the
Partnership Interest from the Seller to the Purchaser pursuant to the
Partnership Transfer Agreement and to provide for the release and indemnity of
various Parties as a result of such transfer.
IN CONSIDERATION of the mutual covenants in this Agreement and in
the Partnership Transfer Agreement and of other consideration (the receipt and
sufficiency of which are acknowledged by each of the Parties), the Parties agree
as follows:
ARTICLE 1
DEFINITIONS
1.1 DEFINITIONS
Unless otherwise defined herein, each defined term used in this
Agreement denoted by initial capital letters shall have the meaning ascribed to
such term in the Partnership Transfer Agreement.
1.2 EXTENDED MEANINGS
In this Agreement, a reference to a "right" in the Partnership
Interest includes a reference to all rights, title, estates and interests in and
to the Partnership Interest, "convey" includes all terms that describe the
passing of all rights in the Partnership Interest, including without limitation
the terms "sell", "assign", "transfer" and "deliver", and "conveyance" has the
corresponding meaning.
ARTICLE 2
CONVEYANCE OF PARTNERSHIP INTEREST
Subject to the provisions of the Partnership Transfer Agreement,
the Seller conveys to the Purchaser all of its rights in and to the Partnership
Interest and the Purchaser accepts such conveyance as at the Closing Time.
ARTICLE 3
MUTUAL RELEASE AND INDEMNITY
3.1 DEFINITIONS
In this Article 3:
"AT&T PARTIES" means AT&T and AWS and each of their directors,
officers, employees, agents and representatives;
"BT PARTIES" means BT and the Seller and each of their directors,
officers, employees, agents and representatives;
27
-3-
"CLAIM" means any act, omission or state of facts and any demand,
action, cause of action, grievance, execution, suit, proceeding,
claim, assessment, judgment, settlement or compromise relating
thereto; and
"LOSS" means any and all loss, liability, damage, cost, expense,
charge, fine, penalty or assessment, resulting from or arising
out of any Claim, including the costs and expenses of any action,
suit, proceeding, demand, assessment, judgment, settlement or
compromise relating thereto and all interest, fines and penalties
and reasonable legal and consulting fees and expenses incurred in
connection therewith, but excluding loss of profits or revenues,
punitive damages and consequential damages, without regard to any
tax deductions or refunds which might offset such Loss.
3.2 RELEASE
The AT&T Parties and the BT Parties hereby remise, release and
forever discharge each other from all actions, causes of action, suits,
proceedings, debts, accounts, bonds, covenants, contracts, claims, liabilities,
damages, grievances, executions, judgments and demands of any kind whatever,
both in law and in equity, whether implied or express, by reason of or in any
way arising out of any cause, matter or thing related to actions taken by the
Partnership, or actions taken by any of them in connection with the Partnership.
Notwithstanding the foregoing, no such release shall apply to any Loss suffered
by the AT&T Parties or the BT Parties where such Loss arises out of a Claim by a
third party (including, for greater certainty, a taxing authority) against the
Partnership or against one or more of the AT&T Parties or the BT Parties in
their capacity as a partner of the Partnership or a party to the Partnership
Agreement, whether as a result of a breach of the Partnership Agreement or
otherwise, where the Claim is based upon an act, omission or state of facts
which relates to a time prior to the Closing Date.
3.3 INDEMNITY OF BT
AWS agrees to indemnify the Seller in respect of any Losses which
the Seller suffers as a result of the application of Section 15-703(b) of the
Delaware Revised Uniform Partnership Act, 6 Del. C (the "ACT") provided that:
(a) the Seller has executed prior to, and assisted in the filing on, the Closing
Date of a notice of disassociation pursuant to Section 15-704 of the Act; and
(b) the Seller has not held itself out as being a partner of the Partnership
after the Closing Date.
ARTICLE 4
GENERAL
4.1 CONVEYANCE SUBJECT TO PARTNERSHIP TRANSFER AGREEMENT
This Agreement is entered into pursuant to the Partnership
Transfer Agreement and is not in derogation of any of the rights or obligations
which the Parties have under the Partnership Transfer Agreement. If there is any
conflict or inconsistency between the provisions
28
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of this Agreement and the provisions of the Partnership Transfer Agreement, the
provisions of the Partnership Transfer Agreement shall govern.
4.2 TIME OF THE ESSENCE
Time is of the essence of each provision of this Agreement.
4.3 NUMBER AND GENDER
In this Agreement, words in the singular include the plural and
vice-versa and words in one gender include all genders.
GOVERNING LAW
This Agreement shall be governed by and interpreted and enforced
in accordance with the laws of the State of Delaware (excluding any conflict of
laws, rule or principle which might refer such construction to the laws of
another jurisdiction) and shall be treated, in all respects, as a Delaware
contract. Each Party irrevocably submits to the non-exclusive jurisdiction of
the Courts of Delaware with respect to any matter arising hereunder or related
hereto.
SURVIVORSHIP
This Agreement shall enure to the benefit of, and be binding
upon, the Parties hereto and their respective successors and assigns.
IN WITNESS WHEREOF this Agreement has been executed by the
Parties on the date first above written.
MMM HOLDINGS, INC.
By:
-------------------------------------------
Name: Mohan Gyani
Title: President
By:
-------------------------------------------
Name: Gregory P. Landis
Title: Senior Vice President and Secretary
AT&T WIRELESS SERVICES, INC.
By:
-------------------------------------------
Name: Jordan Roderick
Title: President, International
AT&T CORP.
By:
-------------------------------------------
Name:
Title:
29
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BT LONGMONT (LUXEMBOURG) IV SARL
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
BRITISH TELECOMMUNICATIONS PLC
By:
-------------------------------------------
Name:
Title:
By:
-------------------------------------------
Name:
Title:
30
EXHIBIT B
PARTNERSHIP TRANSFER AGREEMENT
THIS PARTNERSHIP TRANSFER AGREEMENT, effective as of December
29, 2000 is by and between AT&T Wireless Services, Inc. ("Purchaser") and AT&T
Canada Investments Inc. ("Seller").
WHEREAS, the Purchaser and Seller have determined that it is in
their mutual best interests to transfer the Seller's fifty percent (50%)
partnership interest (the "Partnership Interest") in the AT&T BT Canada JVII
General Partnership ("JVII Partnership") consisting of fifty million
(50,000,000) units in JVII Partnership from Seller to Purchaser;
WHEREAS, in order to effect the Transfer of the Partnership
Interest, Seller desires to sell all of its Partnership Interest to Purchaser,
and Purchaser desires to purchase the Partnership Interest for the Purchase
Price (as defined below).
NOW, THEREFORE, in consideration of the premises contained
herein, the parties, intending to be legally bound, agree as follows:
ARTICLE I
DEFINITIONS
1.1 Capitalized terms used herein and not otherwise defined
shall have the respective meanings assigned to them on Appendix A.
ARTICLE II
PURCHASE AND SALE
2.1 Subject to the terms and conditions set forth herein, as
of the Effective Date (defined below), Seller hereby sells to Purchaser, and
Purchaser hereby acquires from Seller, all of Seller's right, title and interest
in the Partnership Interest.
ARTICLE III
PURCHASE PRICE
3.1 The purchase price for the Partnership Interest shall be
equal to 50% of the Partnership Value (the "Purchase Price"), payable in the
form of a note denominated in United States dollars.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Each of Purchaser and Seller hereby represents and
warrants that:
(a) each such party has the requisite corporate power
and authority and has taken all corporate action necessary in order to execute,
deliver and perform this Agreement and to consummate the transactions
contemplated hereby; and,
(b) this Agreement has been duly executed and
delivered by it and constitutes a valid and binding agreement of it enforceable
in accordance with its terms.
4.2 The Seller further represents and warrants that the
Units are validly issued, fully paid and non-assessable, are free of preemptive
rights and are free and clear of any Security Interests, except as otherwise
provided in the Partnership Agreement.
ARTICLE V
EXPENSES
5.1 Each party hereto agrees to pay all the costs and
expense incurred by it in connection with this Agreement or the transactions
contemplated hereby.
ARTICLE VI
[Intentionally Omitted]
ARTICLE VII
ADOPTION
7.1 Purchaser hereby adopts, undertakes and agrees to
assume, perform and discharge, from and after the date hereof, all liabilities,
duties, obligations, covenants and agreements of Seller in accordance with the
terms and conditions contained in the JVII Partnership Agreement and to be bound
by the terms of the JVII Partnership Agreement, from and after the date hereof,
in all respects as if Purchaser were an original signatory thereto.
ARTICLE VIII
EFFECTIVE DATE
8.1 (a) The "Effective Date" of the transactions
contemplated by this Agreement shall be on December 29, 2000 or at such other
time and place as shall be agreed upon by Purchaser and Seller (the "Effective
Date").
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(b) On or about the Effective Date, (i) Seller will
deliver to Purchaser any necessary executed partnership transfer form (or other
instruments or documents) in respect of the Units and (ii) Purchaser will
deliver to Seller the note described in Section 3.1.
ARTICLE IX
FURTHER ASSURANCES
9.1 Each of the parties hereto shall use its reasonable best
efforts, after the Effective Date, to take, or cause to be taken, all actions,
and to do, or cause to be done, all things, reasonably necessary, proper or
advisable under applicable laws, regulations and agreements to consummate and
make effective the transactions contemplated by this Agreement. Without limiting
the foregoing, on and after the Effective Date, each party hereto shall
cooperate with the other party, and without any further consideration execute
and deliver, or use its reasonable efforts to cause to be executed and
delivered, all instruments, including instruments of conveyance, assignment and
transfer, and to make all filings with and to give all notices to, and to obtain
all consents, approvals or authorizations of, any Governmental Authority or any
other Person under any permit, license, agreement, indenture or other instrument
(including any Consents or Governmental Approvals), and take all such other
actions as such party may reasonably be requested to take by any other party
hereto from time to time, consistent with the terms of this Agreement, in order
to effectuate the provisions and purposes of this Agreement and the transfer of
the Partnership Interest and the other transactions, if any, contemplated
hereby.
ARTICLE X
COUNTERPARTS; ENTIRE AGREEMENT; CORPORATE POWER
10.1 This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party.
ARTICLE XI
GOVERNING LAW
11.1 This Agreement shall be governed by, construed and
interpreted in accordance with the laws of the State of Delaware, irrespective
of the choice of laws principles of the State of Delaware as to all matters,
including matters of validity, construction, effect, performance, enforceability
and remedies.
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ARTICLE XII
ASSIGNABILITY
12.1 This Agreement shall be binding upon the inure to the
benefit of the parties hereto respectively, and their respective successors and
assigns; provided, however, that no party hereto may assign its respective
rights or delegate its respective obligations under this Agreement without the
express prior written consent of the other party hereto.
ARTICLE XIII
THIRD PARTY BENEFICIARIES
13.1 The provisions of this Agreement are solely for the
benefit of the parties and are not intended to confer upon any Person except the
parties any rights or remedies hereunder. There are no third party beneficiaries
of this Agreement and this Agreement shall not provide any third person with any
remedy, claim, liability, reimbursement, claim of action or other right in
excess of those existing without reference to this Agreement.
ARTICLE XIV
NOTICES
14.1 All notices or other communications under this Agreement
shall be in writing and shall be deemed to be duly given when (a) delivered in
person, or (b) sent by telecopy, telegram or telex, or (c) deposited in the mail
or private express mail, postage prepaid, addressed as follows:
If to Purchaser, to : AT&T Wireless Services, Inc.
7277 164th Avenue, N.E.
Redmond, Washington, 98052
Attn: Jordan Roderick
Fax No.: +(425) 580-8033
If to Seller, to: AT&T Canada Investments Inc.
295 North Maple Avenue
Basking Ridge, New Jersey 07920
Attn.: Michael Berg
Fax No.: +(908) 221-4408
Any party may, by notice to the other party, change the address of which such
notices are to be given.
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ARTICLE XV
SEVERABILITY
15.1 If any provision of this Agreement or the application
thereof to any Person or circumstance is determined by a court of competent
jurisdiction to be invalid, void or unenforceable, the remaining provision
hereof, or the application of such provision to Persons or circumstances other
than those as to which it has been held or invalid or unenforceable, shall
remain in full force and effect and shall in no way be affected, impaired or
invalidated thereby, so long as the economic or legal substance of the
transactions contemplated hereby is not affected in any manner adverse to any
party. Upon such determination, the parties shall negotiate in good faith in an
effort to agree upon such a suitable and equitable provision to effect the
original intent of the parties.
ARTICLE XVI
HEADINGS
16.1 The Article and paragraph headings contained in this
Agreement are for reference purposes only and shall not affect in any way the
meaning or interpretation of this Agreement.
ARTICLE XVII
WAIVERS OF DEFAULT
17.1 Waiver by any party of any default by the other party of
any provision of this Agreement shall not be deemed a waiver by the waiving
party of any other default, nor shall it prejudice the rights of the other
party.
ARTICLE XVIII
SPECIFIC PERFORMANCE
18.1 In the event of any actual or threatened default in, or
breach of, any of the terms, conditions and provisions of this Agreement, the
party or parties who are or are to be thereby aggrieved shall have the right to
specific performance and injunctive relief of its rights under this Agreement,
in addition to any and all other rights and remedies at law or in equity, and
all such rights and remedies shall be cumulative. The parties hereby agree that
the remedies at law for any breach or threatened breach, including monetary
damages, are inadequate compensation for any loss and that any defense in any
action for specific performance that a remedy at law would be adequate is
waived.
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ARTICLE XIX
AMENDMENTS
19.1 No provisions of this Agreement shall be deemed waived,
amended, supplemented or modified by any party, unless such waiver, amendment,
supplement or modification is in writing and signed by the authorized
representative of the party against whom it is sought to enforce such waiver,
amendment, supplement or modification.
ARTICLE XX
INTERPRETATION
20.1 Words in the singular shall be held to include the
plural and vice versa and words of one gender shall be held to include the other
gender as the context requires; the terms "hereof," "herein," and "herewith" and
words of similar import shall, unless otherwise stated, be construed to refer to
this Agreement as a whole (including all of the Schedules hereto) and not to any
particular provision of this Agreement. The word "including" and words of
similar import when used in this Agreement shall mean "including, without
limitation," unless the context otherwise requires or unless otherwise
specified; the word "or" shall not be exclusive.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed by their duly authorized representatives.
AT&T CANADA INVESTMENTS INC.
By: /s/ MICHAEL BERG
--------------------------------------
Name: Michael Berg
------------------------------------
Title: President
-----------------------------------
AT&T WIRELESS SERVICES, INC.
By: /s/ JORDAN RODERICK
--------------------------------------
Name: Jordan Roderick
------------------------------------
Title: President -- International
-----------------------------------
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APPENDIX A
"AT&T CANADA INVESTMENTS INC." shall mean AT&T Canada Investments Inc., a wholly
owned Delaware subsidiary of AT&T Corp., a New York corporation.
"AT&T WIRELESS SERVICES, INC." shall mean AT&T Wireless Services, Inc., a wholly
owned Delaware subsidiary of AT&T Corp., a New York corporation.
"CONSENTS" shall mean any consents, waivers or approvals from, or notification
requirements to, any third parties.
"GOVERNMENT APPROVALS" shall mean any notices, reports or other filings to be
made, or any consents, registrations, approvals, permits or authorizations or be
obtained from, any domestic or foreign Governmental Authority.
"GOVERNMENTAL AUTHORITY" shall mean any federal, state, local or foreign or
international court, government, department, commission, board, bureau, agency,
official or other regulatory, administrative or governmental authority.
"PARTNERSHIP VALUE" shall mean 110% of the product of (a) the 20 trading-day
average of the closing price of the Rogers Wireless Communications Inc. Shares
on the New York Stock Exchange prior to and including December 22, 2000 and (b)
the number of Rogers Wireless Communications Inc. Shares held by the JVII
Partnership which consists of 12,313,435 Class A Multiple Voting Shares,
15,334,453 Convertible Preference Shares, Series A, 1,043,171 Class B Restricted
Voting Shares, and 12,443,324 Convertible Preference Shares, Series B.
"PERSON" shall mean an individual, a general or limited partnership, a
corporation, a trust, a joint venture, an unincorporated organization, a limited
liability entity, any other entity and any Governmental Authority.
"SECURITY INTEREST" shall mean any mortgage, security interest, pledge, lien,
charge, claim, option, right to acquire, voting or other restriction,
right-of-way, covenant, condition, easement, encroachment, restriction on
transfer, or encumbrance of any nature whatsoever.
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TO: THE PARTIES TO THE PARTNERSHIP AGREEMENT (AS DEFINED HEREIN)
RECITALS:
A. AT&T Corp. British Telecommunications plc, AT&T Canada Investments Inc.
and BT (Netherlands) 1B.V. for and on behalf of BT Longmont (Luxembourg)
IV SARL (each individually a "Party" and collectively, the "Parties")
entered into a partnership agreement dated as of August 5, 1999 (such
agreement, as the same may be further amended from time to time, the
"Partnership Agreement").
B. Pursuant to an adoption agreement, dated as of January 13, 2000, B.T.
Longmont (Luxembourg) IV SARL became a party to the JVII Partnership
Agreement in place of BT Netherlands 1B.V.;
C. The Partnership Agreement permits a Party to Transfer all or any portion
of its units in the Partnership to a Person provided that, among other
things, such Person executes an agreement in the form of this agreement
pursuant to which it will agree to be bound by the terms and conditions
of the Partnership Agreement.
D. AT&T Canada Investments Inc. (the "Transferor") proposes to Transfer
50,000,000 Units in the Partnership (the "Subject Units") to AT&T
Wireless Services, Inc. (the "Transferee").
E. AT&T Corp. (the "Controlling Person") is the ultimate Controlling Person
of the Transferee.
FOR VALUE RECEIVED, the undersigned agree as follows:
1. Unless otherwise defined, all capitalized terms used in this Adoption
Agreement have the meanings given to them in the Partnership Agreement.
2. Each of the Transferee and the Controlling Person acknowledges having
received and read a copy of the Partnership Agreement.
3. Each of the Transferee and Controlling Person jointly and severally
represents and warrants that the Transferee is an AT&T Governance Party and a
Permitted Transferee of the Subject Units.
4. The Transferee hereby acknowledges and agrees with each of the Parties
that it will be bound by and will comply with all applicable provisions of the
Partnership Agreement as fully as if it had originally been the applicable Party
thereto, and that such provisions will bind its respective successors and
assigns.
5. The Controlling Person hereby acknowledges and agrees with each of the
Parties, that it remains bound by and will comply with all applicable provisions
of the Partnership Agreement, and that such provisions will bind its respective
successors and assigns.
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6. Each of the Transferee and Controlling Person further specifically
acknowledges the provisions of Section 5.11(b) and 9.13(b) of the Partnership
Agreement, which provide for the appointment of the Parties' agents for the
purposes of receiving and sending notices and hereby irrevocably nominates,
constitutes and appoints such agent, as applicable, in accordance with the
provisions thereof.
7. This Adoption Agreement shall enure to the benefit of and bind all
successors and permitted assigns of each of the Transferee and Controlling
Person.
8. For the purposes of any Notice under or in respect of the Partnership
Agreement, the address of the Transferee is:
AT&T Wireless Services, Inc.
7277 164th Avenue, N.E.
Redmond, Washington 98052
USA
Attention: Jordan Roderick
Fax No.: +(425) 580-8033
with a copy to:
AT&T Corp.
295 North Maple Avenue
Basking Ridge, New Jersey 07920
USA
Attention: Christopher Carty
Fax No.: +(908) 221-3793
and
Attention: Ms. Marilyn Wasser, Vice President-Law and Secretary
Fax No.: +(908) 221-6618
9. This Adoption Agreement shall form part of the Partnership Agreement.
Each have executed this Adoption Agreement as of this 29th day of
December, 2000.
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AT&T WIRELESS SERVICES, INC.
By: /s/ JORDAN RODERICK
--------------------------------------
Name: Jordan Roderick
------------------------------------
Title: President -- International
-----------------------------------
AT&T CORP.
By: /s/ STEVEN GARFINKEL
--------------------------------------
Name: Steven Garfinkel
------------------------------------
Title: Assistant Secretary
-----------------------------------
Based and relying upon the representation and warranty of the Transferee and the
Controlling Person that the Transferee is an AT&T Governance Party and a
Permitted Transferree, the Partnership hereby confirms that, the Transferee
shall be and hereby is vested with all the rights and obligations, if any,
previously held by the Transferor in respect of the Subject Units.
AT&T BT CANADA
JVII GENERAL PARTNERSHIP
AT&T WIRELESS SERVICES, INC.
By: /s/ JORDAN RODERICK
--------------------------------------
Name: Jordan Roderick
------------------------------------
Title: President -- International
-----------------------------------
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BT LONGMONT (LUXEMBOURG) IV SARL
By: /s/ PIERRE METZLER
--------------------------------------
Name: Pierre Metzler
------------------------------------
Title: Manager
-----------------------------------
Acknowledged by:
AT&T CANADA INVESTMENTS INC.
By: /s/ MICHAEL BERG
-----------------------------------
Name: Michael Berg
---------------------------------
Title: President
---------------------------------
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EXHIBIT C
TERM SHEET
DECEMBER 29, 2000
LOAN AGREEMENT
BORROWER AT&T Wireless Services, Inc.
LENDER AT&T Canada Investments, Inc.
PRINCIPAL AMOUNT At inception, $359,720,179.00. Principal amount may be
increased or decreased by any dollar amount.
ISSUE DATE 12/29/2000
MATURITY 90 day note that can be prepaid or extended with no prior
notice and without penalty or breakage.
INTEREST RATE At approximately 3:00 PM New York Time on the first
business day of the quarter, the interest rate for the
entire loan balance will be reset. The reset rate will
remain in effect for all additional drawdowns until the
next reset rate is determined. The rate will be derived as
the average of 90 day commercial paper quotes from two CP
dealers (initially determined to be Merrill Lynch Money
Markets Inc. and Goldman Sachs Group) quoting in their
estimation the cost of funds for AT&T at AT&T's Current
rating.
INTEREST PAYMENTS Interest will be calculated and paid at each month end.
Any payment of interest not made when due shall be added
to the principal amount of this Loan.
/s/ Joseph McCabe, Jr. /s/ Michael Berg
--------------------------- ---------------------------
AT&T WIRELESS SERVICE, INC. AT&T CANADA INVESTMENTS, INC.