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Exhibit 1.1
WLR&K DRAFT: 7/04/01
FORM OF
AT&T WIRELESS SERVICES, INC.
__________ SHARES
AT&T WIRELESS SERVICES, INC. COMMON STOCK
PAR VALUE $.01 PER SHARE
UNDERWRITING AGREEMENT
JULY 6, 2001
Credit Suisse First Boston Corporation
Eleven Madison Avenue
New York, New York 10010-3629
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
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As Representatives of the Several Underwriters
Named in Schedule I hereof
Dear Sirs and Mesdames:
The undersigned, Credit Suisse First Boston Corporation and Xxxxxxx, Sachs
& Co. (each, a "Selling Stockholder" and collectively, the "Selling
Stockholders"), each hereby confirm their agreement with AT&T Wireless Services,
Inc., a Delaware corporation (the "Company") and each of the Underwriters named
in Schedule I hereof, as follows:
1. Underwriters and Representatives. The term "Underwriters" as used herein
shall mean the firms and corporations named in Schedule I hereof, and the term
"Underwriter" shall mean any one of such firms or corporations. The terms
"Underwriters," "persons," "firms" and "corporations" as used herein shall
include the singular of such terms as well as the plural. The term
"Representative" shall mean Credit Suisse First Boston Corporation and Xxxxxxx,
Xxxxx & Co. who by signing this Agreement represent that they have been
authorized by each Underwriter to execute this Agreement on behalf of such
Underwriter and to act for such Underwriter in the manner herein provided. All
obligations of the Underwriters hereunder are several and not joint.
2. Description of Securities. The Selling Stockholders propose to sell an
aggregate of ____________________ shares of AT&T Wireless Services, Inc. Common
Stock, par value $.01 per share (the "Common Stock"), to the Underwriters. Each
share of Common Stock will have attached thereto one right (collectively, the
"Rights") to purchase one-hundredth of a share of junior preferred stock, par
value $.01 of the Company. The Rights have been issued pursuant to a Rights
Agreement (the "Rights Agreement") dated as of June 18, 2001 between the Company
and EquiServe Trust Company, N.A., as Rights Agent.
3. Representations and Warranties of the Company. The Company represents
and warrants to the Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement (No. 333-60472) on Form S-1,
including a prospectus relating to the Common Stock, which has become
effective under the Securities Act of 1933, as amended (the "Act"). The
term "Registration Statement" means the Registration Statement as amended
to the date hereof including the information, if any, deemed to be part of
the Registration Statement at the time of effectiveness pursuant to Rule
430A under the Act, and the term "Prospectus" means the prospectus in the
form first used to confirm sales of the Common Stock. The term "preliminary
prospectus" means any preliminary prospectus relating to the Common Stock
used prior to the effectiveness of the Registration Statement. If the
Company has filed an abbreviated registration statement to register
additional shares of Common Stock pursuant to Rule 462(b) under the Act
(the "Rule 462 Registration Statement"), then any reference herein to the
term "Registration Statement" shall be deemed to include such Rule 462
Registration Statement. As used herein, Registration Statement, Prospectus
and preliminary prospectus shall include in each case the material
incorporated by reference therein, if any.
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(b) (i) Each part of the Registration Statement (including the
material incorporated by reference therein, if any) when such part became
effective, did not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading, (ii) the Registration Statement and
the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Act and the applicable rules and
regulations of the Commission thereunder and (iii) the Registration
Statement and the Prospectus do not and, as amended or supplemented, if
applicable, will not contain any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; provided, however, that the Company makes no representations or
warranties as to the information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon written
information furnished to the Company by or on behalf of any Underwriter or
any Selling Stockholder specifically for inclusion therein.
(c) The accountants who have certified or shall certify the financial
statements filed and to be filed with the Commission as parts of the
Registration Statement and the Prospectus are public or certified
accountants, independent with respect to the Company, as required by the
Act and the Securities Exchange Act of 1934, as amended (the "Exchange
Act") and the rules and regulations of the Commission thereunder.
(d) All of the shares of AT&T Wireless Services, Inc. common stock,
par value $.01 per share, issued and outstanding at the time of closing
(including the Common Stock) will, at the time of closing, be duly and
validly authorized and issued, fully paid and non-assessable and, solely
with respect to the general corporation laws of the State of Delaware and
the certificate of incorporation of the Company as in effect at the time of
closing (the "Certificate of Incorporation"), free of preemptive rights.
(e) Neither the sale of the Common Stock nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of the
terms hereof will result in a breach of any of the terms and provisions of,
or constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company is a party or by which
it is bound, or the Certificate of Incorporation or the by-laws, or, to the
best of its knowledge, any order, rule or regulation applicable to the
Company of any court, federal or state regulatory body, administrative
agency or other governmental body having jurisdiction over the Company or
its properties, and, except for the registration of the Common Stock under
the Act and such consents, approvals, authorizations, registrations or
qualifications as may be required under the Exchange Act and applicable
state or foreign securities laws in connection with the purchase and
distribution of the Common Stock by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such court
or governmental agency or body is required for the execution and delivery
by the Company of, compliance by the Company with the provisions of or
consummation of the transactions contemplated by, this Agreement.
(f) The Separation and Distribution Agreement, and each of the
Ancillary Agreements (as defined therein) that have been filed as exhibits
to the Registration
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Statement, in each case between AT&T Corp. ("AT&T") and the Company
(collectively, the "Separation Agreements"), has been duly authorized,
executed and delivered by the Company and constitutes a valid and binding
agreement of the Company.
(g) The compliance by the Company with all of the provisions of each
of the Separation Agreements will not conflict with or result in a breach
or the violation of any of the terms or provisions of, or constitute a
default under, any indenture, mortgage, deed of trust, loan agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them is bound or to which the
Company or any of its subsidiaries is subject, nor will such actions result
in any violation of the provisions of the Certificate of Incorporation or
the by-laws or any statute or any order, rule or regulation of any court or
governmental agency or body having jurisdiction over the Company or any of
its subsidiaries or any of their properties or assets (except for such
conflicts, breaches, violations and defaults as would not have a material
adverse effect on the Company and its subsidiaries taken as a whole); and
no consent, approval, authorization or order of, or filing or registration
with, any such court or governmental agency or body is required for the
execution and delivery by the Company of, and compliance by the Company
with, the provisions of each of the Separation Agreements (except for such
consents, approvals, authorizations, orders, filings, registrations and
qualifications of which the failure to obtain would not have a material
adverse effect on the Company and its subsidiaries taken as a whole).
(h) The financial statements, together with related schedules and
notes, included in or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
present fairly in all material respects the combined financial position,
results of operations and changes in financial position of the Company as
discussed in the footnotes to the financial statements on the basis stated
in the Registration Statement and in the Prospectus at the respective dates
or for the respective periods to which they apply; such statements and
related schedules and notes have been prepared in accordance with generally
accepted accounting principles consistently applied throughout the periods
involved, except as disclosed therein; and the other financial statistical
information and data set forth in the Registration Statement and the
Prospectus (and any amendment or supplement thereto) is, in all material
respects, accurately presented and prepared on a basis consistent with such
financial statements and derived from the books and records of the Company.
4. Each of the Selling Stockholders severally and not jointly represents
and warrants to, and agrees with, each of the Underwriters and, with respect to
Section 4(b), the Company, that:
(a) Such Selling Stockholder has and at the time of closing will have
valid and unencumbered title to the Common Stock to be delivered by such
Selling Stockholder at the time of closing; and upon the delivery of and
payment for the Common Stock at the time of closing, the Underwriters will
acquire valid and unencumbered title to the Common Stock to be delivered by
such Selling Stockholder at the time of closing.
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(b) To the extent that any statements or omissions made in the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement thereto are made in reliance upon and in conformity
with written information furnished to the Company by such Selling
Stockholder expressly for use therein, such preliminary prospectus and the
Registration Statement did, and the Prospectus and any further amendments
or supplements to the Registration Statement and the Prospectus, when they
become effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder and will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein
(in the case of the Prospectus, in the light of the circumstances under
which they were made) not misleading.
5. Purchase and Sale of Common Stock. On the basis of the representations
and warranties and on the terms and subject to the conditions herein set forth,
each Selling Stockholder agrees, severally and not jointly, to sell to each
Underwriter, and each Underwriter agrees, severally and not jointly, to purchase
from each Selling Stockholder, at a price of $_____ per share (the "purchase
price"), that number of shares of Common Stock set forth opposite the name of
such Selling Stockholder or Underwriter, as the case may be, on Schedules I and
II hereto, respectively.
6. Closing. Delivery of, and payment of the purchase price for, the shares
of Common Stock which the Underwriters severally agree to purchase shall be made
at the office of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, at 9:00 a.m., New York City time, on July 11, 2001 or at such other place
or time on the same or such other day as shall be agreed upon by the Company,
the Selling Stockholders and the Representatives; provided that the place and
time of closing shall be at the same place as, and on the same day as and
promptly after, the closing of the exchange of indebtedness of AT&T for shares
of Common Stock contemplated by those certain Exchange Agreements, dated as of
the date hereof, between AT&T and each Selling Stockholder, and, in each case,
solely with respect to certain sections thereof, the Company. The time and date
for such payment and delivery are herein referred to as the "time of closing."
At the time of closing, the Selling Stockholders will deliver the shares of
Common Stock, registered in such names and in such authorized denominations as
the Underwriters shall have specified not less than two business days prior to
the time of closing, against payment therefor as provided in Section 7 hereof,
through the facilities of the Depository Trust Company to the Representatives
for the respective accounts of the Underwriters.
The Selling Stockholders agree to make the shares of Common Stock available
to the Representatives for examination at a place to be mutually agreed upon,
not later than 2:00 p.m. on the business day next preceding the time of closing.
Unless this Agreement is terminated in accordance with any of its
provisions, a default by any of the Underwriters shall not relieve any other
Underwriter from its obligation to purchase the shares of Common Stock which it
has agreed to purchase.
7. Payment. At the time of closing, the Selling Stockholders will cause the
shares of Common Stock to be delivered to the Representatives against payment to
the Selling
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Stockholders of the purchase price of such Common Stock in Federal
or other funds immediately available.
8. Covenants of the Company. The Company agrees as follows:
(a) The Company will not file any amendment or supplement to the
Registration Statement or the Prospectus of which the Representatives shall
not previously have been advised or which shall be disapproved by Xxxxx
Xxxx & Xxxxxxxx, which firm is acting as counsel for the Underwriters.
(b) The Company will deliver to the Representatives a reasonable
number of copies of the registration statement as originally filed and of
all amendments thereto up to the time of closing. Promptly upon the filing
with the Commission of any amendment to the Registration Statement or of
any supplement to or amendment of the Prospectus, the Company will deliver
to the Representatives a reasonable number of copies thereof.
(c) The Company will advise the Representatives promptly (confirming
such advice in writing) of any official request made by the Commission for
an amendment to the Registration Statement or Prospectus or for additional
information with respect thereto and of any official notice of the
institution of proceedings for, or of the entry of, a stop order suspending
the effectiveness of the Registration Statement. The Company will use
reasonable efforts to prevent the issuance of any such stop order and, if
such a stop order should be entered, the Company will make every reasonable
effort to obtain the lifting or removal thereof as soon as possible.
(d) The Company will pay all expenses in connection with the
preparation and filing of the Registration Statement, the issuance and
delivery of the Common Stock and the printing of the copies of any
preliminary prospectus and of the Prospectus to be furnished as provided in
the first sentence of subparagraph (f) below; and will pay any taxes on the
issuance of the Common Stock, but will not pay any transfer taxes. The
Company will not be required to pay any amount for any expenses of the
Representatives or any of the Underwriters, except the cost of mailing to
the Underwriters copies of the Registration Statement and all amendments
thereto, the preliminary prospectuses and the Prospectus, and except as
provided by subparagraph (e) below. The Company will not in any event be
liable to any of the Underwriters for damages on account of loss of
anticipated profits.
(e) The Company will use all reasonable efforts to qualify the Common
Stock, or to assist in the qualification of the Common Stock by or on
behalf of the Representatives, for offer and sale under the securities or
Blue Sky laws of such states of the United States as the Representatives
may designate, and will pay or reimburse the Representatives for counsel
fees, filing fees and out-of-pocket expenses in connection with such
qualification; provided that the Company shall not be required (i) to
qualify as a foreign corporation or to file a general consent to service of
process in any state or (ii) to pay, or to incur, or to reimburse the
Representatives for, any such expenses if no shares of Common Stock are
delivered to and purchased by the Underwriters hereunder because
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of a default by one or more of the Underwriters or the
termination of this Agreement pursuant to Section 11 hereof.
(f) The Company will furnish to the Representatives or to the
respective Underwriters as many copies of the Prospectus as the
Representatives or the respective Underwriters may reasonably request for
the purposes contemplated by the Act. If, during such period after the
first date of the public offering of the Common Stock as, in the opinion of
the counsel for the Underwriters, the Prospectus is required by law to be
delivered, any event shall occur which should be set forth in a supplement
to or an amendment of the Prospectus in order to make the Prospectus not
misleading, the Company will, upon the occurrence of each such event,
forthwith at its expense, prepare and furnish to the Representatives or to
the respective Underwriters as many copies as the Representatives or the
respective Underwriters may reasonably request for the purposes
contemplated by the Act of a supplement to or amendment of the Prospectus
which will supplement or amend the Prospectus so that, as supplemented or
amended, it will not at the date of such supplement or amendment contain
any untrue statement of a material fact or omit to state any material fact
necessary in order to make the statements therein not misleading. For the
purpose of this subparagraph (f), the Company will furnish such reasonable
information with respect to itself as the Representatives may from time to
time request, and the Representatives, at their own expense, may visit any
of the properties of the Company and may inspect the books of account of
the Company at any reasonable time. Notwithstanding any of the other
provisions of this subparagraph (f), the Company shall not be under any
obligation to furnish any supplement to or amendment of the Prospectus on
account of any change in, or to include in any amended prospectus any
change in, the information furnished to the Company by any Underwriter or
Underwriters or by the Representatives on its or their behalf for use in
the Prospectus, unless the Representatives have advised the Company in
writing of such change and have requested the Company at the expense of
such Underwriter or Underwriters to prepare a supplement to or amendment of
the Prospectus to reflect such change or to include such change in an
amended prospectus.
(g) The Company will cause to be made generally available to its
security holders as soon as practicable, but in any event not later than
September 30, 2002, an earnings statement or statements which shall meet
the requirements of Section 11(a) of the Act and Rule 158 promulgated
thereunder.
9. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Common Stock shall be subject to
the following additional conditions:
(a) At the time of closing no stop order suspending the effectiveness
of the Registration Statement, as amended from time to time, shall be in
effect and no proceedings for that purpose shall be pending before or
threatened by the Commission, and the Representatives shall have received a
certificate dated the day of closing and signed by a Vice President of the
Company to the effect that no such stop order is in effect and, to the
knowledge of the Company, no proceedings for such purpose are pending
before, or threatened by, the Commission.
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(b) At or prior to the time of closing, the Representatives shall have
received from Wachtell, Lipton, Xxxxx & Xxxx ("WLRK"), counsel for the
Company, an opinion, satisfactory to Xxxxx Xxxx & Xxxxxxxx, to the effect
that:
(i) the Company is a corporation in good standing, duly organized
and validly existing under the laws of the State of Delaware; and is
authorized by its Certificate of Incorporation to transact the
business in which it is engaged, as set forth in the Prospectus;
(ii) the Company is duly qualified to transact the business in
which it is engaged, as set forth in the Prospectus, in each State in
the United States in which it operates;
(iii) the shares of Common Stock delivered at the time of closing
have been duly and validly authorized and issued, are fully paid and
non-assessable and, solely with respect to the general corporation
laws of the State of Delaware and the Certificate of Incorporation,
free of preemptive rights;
(iv) each of this Agreement and the Rights Agreement has been
duly authorized, executed and delivered on behalf of the Company and
is valid and binding on the Company, except as rights to indemnity and
contribution hereunder may be limited under applicable law;
(v) the Common Stock conforms in all material respects to the
description thereof contained in the Prospectus;
(vi) all consents, approvals, authorizations or other orders of
U.S. regulatory authorities legally required for the issuance and sale
of the Common Stock to the Underwriters pursuant to the terms of this
Agreement, have been obtained, except such as may be required by the
securities or Blue Sky laws of the various States in connection with
the offer and sale of the Common Stock; and
(vii) except as to financial statements and schedules and other
financial and statistical information contained therein, which such
opinion need not pass upon, (A) the Registration Statement when it
became effective complied as to form in all material respects with the
requirements of the Act and the applicable instructions, rules and
regulations of the Commission thereunder; (B) the Registration
Statement and the Prospectus, as amended or supplemented, if
applicable, comply, and at the date thereof complied, as to form in
all material respects with the requirements of the Act and the
applicable instructions, rules and regulations of the Commission
thereunder; and (C) advising that nothing came to such counsel's
attention which would lead such counsel to believe (x) any part of the
Registration Statement at the time it became effective contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading; and (y) as of the closing date, the Prospectus
contains any untrue statement of a material fact or omits to state a
material fact required to be stated
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therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
At WLRK's option, the opinion specified in clause (ii) above may be
delivered by Xxxxxxx X. Xxxxxx, Senior Vice President and General Counsel of the
Company, in lieu of WLRK.
(c) At or prior to the time of closing, the Representatives shall have
received from Xxxxx Xxxx & Xxxxxxxx an opinion to the effect specified in
clauses (i), (iii), (iv) and (vii)(A), (B) and (C) of subparagraph (b)
above.
(d) At the date hereof and at or prior to the time of closing, the
Representatives shall have received an executed copy of a letter of
PricewaterhouseCoopers LLP, addressed to the Company and to the
Representatives and the QIU (as defined below), to the effect that: (i)
they are independent public accountants as required by the Act and the
applicable published rules and regulations of the Commission thereunder;
(ii) the audited financial statements contained in the Registration
Statement comply as to form in all material respects with the applicable
accounting requirements of the Act and the applicable published rules and
regulations of the Commission thereunder; (iii) the unaudited pro forma
financial statements contained in the Registration Statement comply as to
form in all material respects with the applicable accounting requirements
of Rule 11-02 of Regulation S-X promulgated by the Commission; and (iv)
nothing has come to their attention as the result of specified procedures
not constituting an audit that caused them to believe (A) that there was
any change in the capital stock or increase in long term debt of the
Company, or any decrease in net assets, from the date of the latest balance
sheet which is contained in the Registration Statement, to a date not more
than five days prior to the date of such letter or (B) that there were any
decreases, as compared with the corresponding period in the preceding year,
in total revenues, operating income or net income from the date of the
latest figures for such items contained in the Registration Statement to
the date of the latest available financial statements of the Company;
provided that, with respect to any of the items specified in clause (iv),
such letter may contain an exception for matters which the Registration
Statement discloses have occurred or may occur; and provided further, that
the letter may vary from the requirements specified in this subparagraph in
such manner as the Representatives in their sole discretion may determine
to be immaterial or in such manner as may be acceptable to the
Representatives.
(e) At the time of closing, the Representatives shall have received an
executed copy of a letter of Xxxxxx Xxxxxxxx LLP, addressed to the Company
and to the Representatives and the QIU, to the effect that: (i) they are
independent public accountants as required by the Act and the applicable
published rules and regulations of the Commission thereunder and (ii) the
audited financial statements contained in the Registration Statement,
insofar as they relate to Vanguard Cellular Systems, Inc. and its
subsidiaries, comply as to form in all material respects with the
applicable accounting requirements of the Act and the applicable published
rules and regulations of the Commission thereunder.
(f) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective dates as of which
information is given in the
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Registration Statement and the Prospectus there shall not have been, at the
time of closing, any material adverse change, financial or otherwise, in
the condition of the Company from that set forth in the Registration
Statement and the Prospectus; the representations and warranties of the
Company herein shall be true at the time of closing; the Company shall not
have failed, at or prior to the time of closing, to have performed all
agreements herein contained which should have been performed by it at or
prior to such time; and the Representatives shall have received, at the
time of closing, a certificate to the foregoing effect dated the day of the
closing and signed by a Vice President of the Company.
(g) The New York Stock Exchange shall have approved the Common Stock
for listing, subject only to official notice of issuance.
In case any of the conditions specified above in this Section 9 shall not
have been fulfilled, this Agreement may be terminated by the Representatives by
delivering written notice of termination to the Selling Stockholders and the
Company. Any such termination shall be without liability of any party to any
other party except to the extent provided in subparagraphs (d), (e) and (f) of
Section 8 hereof.
10. Conditions of the Selling Stockholders' Obligation. The obligation of
each Selling Stockholder to deliver the Common Stock upon payment therefor shall
be subject to the condition that at the time of closing no stop order suspending
the effectiveness of the Registration Statement, as amended from time to time,
shall be in effect and no proceedings for that purpose shall then be pending
before, or threatened by, the Commission.
In case the condition specified above in this Section 10 shall not have
been fulfilled, this Agreement may be terminated by any Selling Stockholder by
delivering written notice of termination to the Representatives and the Company.
Any such termination shall be without liability of any party to any other party
except to the extent provided in subparagraphs (d), (e) and (f) of Section 8
hereof.
11. Termination of Agreement. This Agreement may be terminated by the
Representatives delivering written notice of termination to the Company and the
Selling Stockholders at any time prior to the time of closing, if after the
signing of this Agreement (i) trading in securities generally on the New York
Stock Exchange shall have been materially suspended or materially limited or
minimum prices shall have been established on such Exchange (which shall not
include trading suspensions or limitations resulting from the operation of
General Rules 80A and 80B of such Exchange, as amended or supplemented), (ii) a
banking moratorium shall have been declared by either federal or New York State
authorities or (iii) the United States shall have become engaged in hostilities
which have resulted in the declaration of a national emergency or a declaration
of war which, in the reasonable judgment of the Representatives, makes it
impracticable or inadvisable to proceed with the offering or delivery of the
Common Stock on the terms and in the manner contemplated in the Prospectus.
A termination of this Agreement pursuant to this Section 11 shall be
without liability of any party to any other party.
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12. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold each Underwriter and ABN AMRO Incorporated in its capacity as a
"qualified independent underwriter" within the meaning of Section 2(o) of Rule
2720 of the National Association of Securities Dealers, Inc. with respect to the
offering and sale of the Common Stock (the "QIU"), and each person, if any, who
controls any Underwriter or the QIU within the meaning of Section 15 of the Act
or Section 20 of the Exchange Act, harmless from and against any and all losses,
claims, damages, and liabilities with respect to the Common Stock or any other
securities of the Company arising because the Registration Statement, any
preliminary prospectus used in connection with the offering of the Common Stock
or the Prospectus (if used within the period set forth in Section 8(f) hereof
and if used as amended or supplemented by all amendments or supplements thereto
which have been furnished to the Representatives or such Underwriter or the QIU)
contained or is alleged to have contained any untrue statement of a material
fact or omitted or is alleged to have omitted to state a material fact required
to be stated therein or necessary to make the statements therein not misleading,
except as to losses, claims, damages or liabilities caused by any such untrue
statement or omission or alleged untrue statement or omission made in reliance
upon information furnished to the Company herein or otherwise furnished in
writing by or on behalf of any Underwriter, the QIU or Selling Stockholder for
use in connection with any preliminary prospectus, the Registration Statement or
the Prospectus or any amendment or supplement thereof, provided that the
indemnity agreement with respect to any preliminary prospectus shall not inure
to the benefit of any Underwriter (or to the benefit of any person controlling
such Underwriter) on account of any losses, claims, damages or liabilities
arising from the sale of Common Stock to any person if a copy of the Prospectus
(as amended or supplemented by all amendments or supplements thereto which have
been furnished to the Representatives or such Underwriter, but without exhibits)
shall not have been sent, mailed or given to such person, if required by the
Act, at or prior to the written confirmation of the sale of such Common Stock to
such person.
(b) Each Underwriter and Selling Stockholder agrees to indemnify and
hold the Company, its directors, its officers who sign the registration
statement, and each person who controls the Company within the meaning of
Section 15 of the Act or Section 20 of the Exchange Act harmless from and
against any and all losses, claims, damages and liabilities arising because the
Registration Statement or any preliminary prospectus relating to the Common
Stock, or the Prospectus or any amendment or supplement thereto contained or is
alleged to have contained any untrue statement of a material fact or omitted or
is alleged to have omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading, which untrue
statement or omission or alleged untrue statement or omission was made in any
such preliminary prospectus or in the Registration Statement or Prospectus or
any amendment or supplement thereto in reliance upon information furnished to
the Company herein or otherwise furnished in writing by or on behalf of such
Underwriter or Selling Stockholder for use in connection with any preliminary
prospectus, the Registration Statement or the Prospectus or any amendment or
supplement thereof.
(c) Each indemnified party under this Section agrees that upon the
commencement of any action against such indemnified party in respect of which
indemnity may be sought on account of any indemnity agreement contained herein,
it will promptly give written notice of the commencement thereof to the party or
parties against whom indemnity shall be sought, but the omission so to notify
such indemnifying party or parties of any such action shall
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not relieve such indemnifying party or parties from any liability which it or
they may have to the indemnified party or parties otherwise than on account of
such indemnity agreement. In case such notice of any such action shall be so
given, such indemnifying party or parties shall be entitled to participate at
its or their own expense in the defense of such action, or, if it or they so
elect, to assume the defense of such action, and in the latter event such
defense shall be conducted by counsel chosen by such indemnifying party or
parties and satisfactory to the indemnified party or parties who shall be
defendant or defendants in such action, and such defendant or defendants shall
bear the fees and expenses of any additional counsel retained by them; but if
the indemnifying party or parties shall not elect to assume the defense of such
action, such indemnifying party or parties will reimburse such indemnified party
or parties for the reasonable fees and expenses of any counsel retained by them.
In the event that the parties to any such action (including impleaded parties)
include both the indemnifying party and the indemnified party and either (i) the
indemnifying party or parties and indemnified party or parties mutually agree or
(ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for all such
indemnified parties, which firm shall be designated in writing by the
Representatives in the case of an action in which one or more Underwriters, the
QIU or controlling persons are indemnified parties and by the Company in the
case of an action in which the Company or any of its directors, officers or
controlling persons are indemnified parties. The indemnifying party or parties
shall not be liable under this Agreement with respect to any settlement made by
any indemnified party or parties without prior written consent by the
indemnifying party or parties to such settlement.
(d) If the indemnification provided for in this Section is unavailable
to an indemnified party in respect of any losses, claims, damages, or
liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect primarily the relative benefits received by the Company
and the Selling Stockholders on the one hand and the Underwriters and the QIU on
the other from the offering of the Common Stock and also to reflect where
appropriate the relative fault of the Company and the Selling Stockholders on
the one hand and the Underwriters and the QIU on the other in connection with
the statements or omissions or alleged statements or omissions which resulted in
such losses, claims, damages, or liabilities, as well as any other relevant
equitable considerations. The relative fault of the Company, the Selling
Stockholders, the QIU and of the Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company, the Selling Stockholders, the
QIU or by the Underwriters and the parties' relative intent, knowledge, access
to information and opportunity to correct or prevent such statement or
-12-
13
omission. The Company, the Selling Stockholders and the QIU and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subparagraph (d) were determined by pro rata allocation (even
if the Underwriters and the QIU were treated as one entity for such purpose) or
by any other method of allocation which does not take account of the equitable
considerations referred to above in this subparagraph (d). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in this subparagraph (d) shall be deemed to include,
subject to the limitations set forth above in this Section 12, any legal or
other expenses reasonably incurred by such indemnified party in connection with
defending any such action or claim. Notwithstanding the provisions of this
subparagraph (d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the shares of Common
Stock underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has been
required to pay, otherwise than pursuant to this subparagraph (d), by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Each Underwriter's obligation to
contribute pursuant to this subparagraph (d) is several in an amount which shall
bear the same proportion to the number of shares of Common Stock set forth
opposite the name of such Underwriter in Schedule I.
13. Miscellaneous. This Agreement shall inure to the benefit of the
Company, its directors, its officers who sign the registration statement, the
Selling Stockholders, the several Underwriters and each controlling person
referred to in Section 12 hereof and their respective successors. Nothing in
this Agreement is intended or shall be construed to give to any other person,
firm or corporation any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. The term
"successor" as used in this Agreement shall not include any purchaser, as such
purchaser, of any of the Common Stock from any of the several Underwriters.
14. Notices. All notices or other communications under this Agreement shall
be in writing and shall be deemed to be duly given as of the date delivered,
mailed or transmitted, and shall be effective upon receipt, if delivered
personally, mailed by registered or certified mail (postage prepaid, return
receipt requested) or delivered by a nationally recognized courier service to
the parties at the following address or sent by electronic transmission to the
telecopier numbers specified below:
If to the Underwriters, unless otherwise provided, to the Representatives,
in care of:
[ ]
If to Credit Suisse First Boston Corporation, in its capacity as Selling
Stockholder, to:
[ ]
If to Xxxxxxx, Xxxxx & Co., in its capacity as Selling Stockholder, to:
Xxxxxxx, Sachs & Co.
Registrant Department
0 Xxxxxxx Xxxxx, 0xx Xxxxx
-13-
14
If to the Company to:
AT&T Wireless Services, Inc.
0000 000xx XX
Xxxxxxx, XX 00000
Attn: General Counsel
Telecopier: 000-000-0000
15. Governing Law. The validity and interpretation of this Agreement shall
be governed by the laws of the State of New York.
16. Survival Clause. Except with respect to any Underwriter who is in
default within the meaning of Section 6 hereof, the indemnity and contribution
agreement contained in Section 12 hereof and the representations and warranties
of the Company and of the Selling Stockholders set forth in this Agreement or in
any certificate furnished pursuant hereto shall remain operative and in full
force and effect regardless of (i) any termination of this Agreement, (ii) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, or (iii) acceptance of and payment for the Common Stock.
-14-
15
Please sign and return to us the enclosed duplicate of this letter,
whereupon this letter will become a binding agreement among the Selling
Stockholders, the Company and the several Underwriters, in accordance with its
terms.
Very truly yours,
CREDIT SUISSE FIRST BOSTON CORPORATION
in its capacity as a Selling Stockholder
By:
-------------------------------------
Name:
Title:
XXXXXXX, XXXXX & CO.
in its capacity as a Selling Stockholder
By:
-------------------------------------
(Xxxxxxx, Sachs & Co.)
AT&T WIRELESS SERVICES, INC.
By:
-------------------------------------
Name:
Title:
(acceptances appear on next page)
[Signature page to Underwriting Agreement]
16
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
Acting severally on behalf of themselves and the
Underwriters named herein
CREDIT SUISSE FIRST BOSTON CORPORATION
By:
---------------------------------------
Name:
Title:
XXXXXXX, XXXXX & CO.
By:
-----------------------------------------
(Xxxxxxx, Sachs & Co.)
[Signature page to Underwriting Agreement-continued]
17
SCHEDULE I
Number of Shares of
Underwriter Common Stock
To Be Purchased
Credit Suisse First Boston Corporation.................
Xxxxxxx, Xxxxx & Co. ..................................
ABN Amro Incorporated..................................
Total:...........................................
18
SCHEDULE II
Number of Shares of
Selling Stockholder Common Stock
To Be Sold
Credit Suisse First Boston Corporation.................
Xxxxxxx, Sachs & Co. ..................................
Total:...........................................
