MEDIAONE GROUP, INC.
26,000,000 PIES-SM- (Premium Income Exchangeable Securities-SM-)*
6-1/4% Exchangeable Notes Due August 15, 2001
(Subject to Exchange into Shares of Common Stock,
par value $.01 per share, of AirTouch Communications, Inc.)
Underwriting Agreement
New York, New York
July 30, 1998
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
c/x Xxxxxx Brothers Inc.
As Representatives of the several Underwriters,
Three World Financial Center
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
MediaOne Group, Inc. (formerly known as US WEST, Inc.), a Delaware
corporation ("MediaOne Group"), proposes to sell to the underwriters named in
Schedule I hereto (the "Underwriters"), for whom you (the "Representatives") are
acting as representatives, an aggregate of 26,000,000 PIES (Premium Income
Exchangeable Securities) consisting of its 6-1/4% Exchangeable Notes Due
August 15, 2001 (the "Underwritten PIES"), to be issued under an indenture (the
"Indenture") dated as of November 13, 1995 between MediaOne Group and
-------------
* Plus an option to purchase from MediaOne Group, Inc. up to 3,900,000
additional PIES to cover over-allotments.
The First National Bank of Chicago, as trustee (the "Trustee"), as amended to
the date hereof by the First Supplemental Indenture thereto dated as of
December 6, 1995, the Second Supplemental Indenture thereto dated as of May
8, 1996 and the Third Supplemental Indenture thereto dated as of August 5,
1998. In addition, the Underwriters will have an option to purchase up to
3,900,000 PIES (the "Option PIES" and, together with the Underwritten PIES,
the "PIES"). At maturity (including as a result of acceleration or
otherwise), the PIES will be mandatorily exchanged by MediaOne Group into
shares of Common Stock, par value $.01 per share (the "AirTouch Common
Stock"), of AirTouch Communications, Inc., a Delaware corporation
("AirTouch") (or, at MediaOne Group's option under the circumstances
described in the Final MediaOne Group Prospectus (as defined below), the cash
equivalent for all or part thereof and/or such other consideration as
permitted or required by the terms of the PIES) at the rate specified in the
Final MediaOne Group Prospectus.
In connection with the foregoing and pursuant to the Investment
Agreement dated April 6, 1998 between AirTouch and MediaOne Group (the
"Investment Agreement"), AirTouch has filed with the Commission a shelf
registration statement (including a base prospectus), pursuant to Rule 415
and has filed a preliminary prospectus pursuant to Rule 424 with respect to a
number of shares (the "Underwritten Shares") of AirTouch Common Stock offered
pursuant to the Underwritten PIES plus an additional number of shares (the
"Option Shares" and, together with the Underwritten Shares, the "Shares") of
AirTouch Common Stock offered pursuant to the Option PIES, for sale by
MediaOne Group as a selling stockholder (to the extent MediaOne Group shall
so elect to deliver AirTouch Common Stock at maturity to holders of the PIES
pursuant to the terms of the PIES), which registration statement is referred
to in Section 2 of this Agreement.
Certain terms used in this Agreement are defined in paragraph (a)(vi) of
Section 1 and paragraph (c) of Section 2.
1. REPRESENTATIONS AND WARRANTIES OF MEDIAONE GROUP. (a) MediaOne
Group represents and warrants to, and agrees with, each Underwriter and AirTouch
as set forth below in this Section 1.
(i) MediaOne Group has filed with the Commission registration
statements (file number 33-62451, 333-57187 and 333-59587) on Form
S-3, including a basic prospectus, for the registration under the
Securities Act of 1933, as amended (the "Act"), of the offering and
sale of the PIES. MediaOne Group may have filed one or more amendments
thereto, and may have used a Preliminary Final MediaOne Group
Prospectus, each of which has previously been furnished to you and to
AirTouch. Such registration statement, as so amended, has become
effective. MediaOne Group will next file with the Commission pursuant
to Rules 415 and 424(b)(2) or (5) a final supplement to the form of
prospectus included in such registration statement relating to the
PIES and the offering thereof. As filed, such final prospectus
supplement, except to the extent the Representatives (and, as to
modifications to AirTouch Furnished Information, AirTouch) shall agree
in writing to a modification, shall be in all substantive respects in
the form
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furnished to you and AirTouch prior to the Execution Time or, to the
extent not completed at the Execution Time, shall contain only such
specific additional information and other changes (beyond that
contained in the Basic MediaOne Group Prospectus and any Preliminary
Final MediaOne Group Prospectus) as MediaOne Group has advised you and
AirTouch, prior to the Execution Time, will be included or made
therein.
(ii) On the MediaOne Group Effective Date, the MediaOne
Group Registration Statement did or will, and when the Final MediaOne
Group Prospectus is first filed in accordance with Rule 424(b) and on
the Closing Date (as hereinafter defined), the Final MediaOne Group
Prospectus (and any supplement thereto) will, conform in all material
respects with the applicable requirements of the Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"), and the
respective rules thereunder; on the MediaOne Group Effective Date, the
MediaOne Group Registration Statement did not or will not contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary in order to make the
statements therein not misleading; on the MediaOne Group Effective
Date and on the Closing Date the Indenture did or will comply in all
material respects with the applicable requirements of the Trust
Indenture Act and the rules thereunder; and, on the date of any filing
pursuant to Rule 424(b) and on the Closing Date, the Final MediaOne
Group Prospectus (together with any supplement thereto) will not
include 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 MediaOne Group makes no
representations or warranties as to (A) that part of the MediaOne
Group Registration Statement which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (B) the information contained in or omitted from the
MediaOne Group Registration Statement or the Final MediaOne Group
Prospectus (or any supplement thereto) in reliance upon and in
conformity with information furnished in writing to MediaOne Group by
or on behalf of any Underwriter through the Representatives
specifically for inclusion in the MediaOne Group Registration
Statement or the Final MediaOne Group Prospectus (or any supplement
thereto) or (C) the information contained in or omitted from the Final
MediaOne Group Prospectus (or any supplement thereto) in reliance upon
and in conformity with AirTouch Furnished Information.
(iii) Subsequent to the respective dates as of which
information is presented in the MediaOne Group Registration Statement
and the Final MediaOne Group Prospectus, except as otherwise stated
therein, there has been no material adverse change or any development
involving a prospective material adverse change in the financial
condition or results of operations of MediaOne Group and its
subsidiaries taken as a whole ("MediaOne Material Adverse Effect").
(iv) To the knowledge of MediaOne Group, the representations
and warranties of AirTouch contained in Section 2 of this Agreement
are (i) in cases where such representations and warranties are
qualified as to materiality, true and correct and (ii) in
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all other cases, true and correct in all material respects.
(v) MediaOne Group has not taken and will not take, directly or
indirectly, any action designed to or which has constituted or which
might reasonably be expected to cause or result, under the Exchange
Act or otherwise, in stabilization or manipulation of the price of any
security of AirTouch to facilitate the sale or resale of the PIES or
the Shares and has not effected any sales of AirTouch Common Stock
which, if effected by the issuer, would be required to be disclosed in
response to Item 701 of Regulation S-K.
(vi) The terms which follow, when used in this Agreement, shall
have the meanings indicated. The term "Commission" shall mean the
Securities and Exchange Commission. "MediaOne Group Effective Date"
shall mean each date that the MediaOne Group Registration Statement
and any post-effective amendment or amendments thereto became or
become effective. "Execution Time" shall mean the date and time that
this Agreement is executed and delivered by the parties hereto.
"Basic MediaOne Group Prospectus" shall mean the prospectus referred
to in paragraph (a) (i) of this Section 1 contained in the MediaOne
Group Registration Statement at the MediaOne Group Effective Date.
"Preliminary Final MediaOne Group Prospectus" shall mean any
preliminary prospectus supplement to the Basic MediaOne Group
Prospectus which describes the PIES and the offering thereof, is used
prior to filing the Final MediaOne Group Prospectus and is filed,
together with the Basic MediaOne Group Prospectus and the Preliminary
AirTouch Prospectus, pursuant to Rule 424(b). "Final MediaOne Group
Prospectus" shall mean the prospectus supplement relating to the PIES
that is first filed pursuant to Rule 424(b) after the Execution Time
together with the Basic MediaOne Group Prospectus and the Final
AirTouch Prospectus. "MediaOne Group Registration Statement" shall
mean the registration statement referred to in paragraph (a) (i) of
this Section 1, including incorporated documents, exhibits and
financial statements, as amended at the Execution Time and, in the
event any post-effective amendment thereto becomes effective prior to
the Closing Date shall also mean such registration statement as so
amended. Such term shall include any Rule 430A Information deemed to
be included therein at the MediaOne Group Effective Date as provided
by Rule 430A. "Rule 415," "Rule 424," "Rule 000X," "Xxxxxxxxxx X-X"
and "Regulation S-X" refer to such rules or regulation under the Act.
"Rule 430A Information" means information with respect to the PIES (or
the Shares) and the offering thereof permitted to be omitted from the
MediaOne Group Registration Statement (or the AirTouch Registration
Statement) when it becomes effective pursuant to Rule 430A. "MediaOne
Group Furnished Information" means the information furnished in
writing by or on behalf of MediaOne Group for inclusion in the
Preliminary AirTouch Prospectus or the Final AirTouch Prospectus;
AirTouch and the Underwriters acknowledge that the statements set
forth in the first two sentences of the first paragraph on the cover
page, in the first sentence of the second paragraph on the cover page,
under the caption "Summary --The Offering of the PIES," in the last
sentence of the paragraph, under the caption "Risk Factors -- Impact
of the PIES on the Market for the Common Stock" and in the first
paragraph under the caption "Selling Stockholder" in any Preliminary
AirTouch Prospectus or the Final AirTouch Prospectus constitute the
only such information. Any reference herein to the MediaOne Group
Registration Statement,
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the Basic MediaOne Group Prospectus, any Preliminary Final MediaOne
Group Prospectus or the Final MediaOne Group Prospectus shall be
deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 which were filed under the
Exchange Act on or before the MediaOne Group Effective Date or the
issue date of the Basic MediaOne Group Prospectus, any Preliminary
Final MediaOne Group Prospectus or the Final MediaOne Group
Prospectus, as the case may be; and any reference herein to the terms
"amend," "amendment" or "supplement" with respect to the MediaOne
Group Registration Statement, the Basic MediaOne Group Prospectus, any
Preliminary Final MediaOne Group Prospectus or the Final MediaOne
Group Prospectus shall be deemed to refer to and include the filing of
any document under the Exchange Act after the MediaOne Group Effective
Date, or the issue date of any Preliminary Final MediaOne Group
Prospectus or the Final MediaOne Group Prospectus, as the case may be,
deemed to be incorporated therein by reference.
(b) (i) Neither the execution or delivery of this Agreement nor the
consummation of the transactions contemplated hereby will conflict with, result
in a breach or violation of, or constitute a default under, (a) the articles of
incorporation, by-laws or other governing documents of MediaOne Group or
MediaOne of Delaware, Inc. (the "MediaOne Group Subsidiary") or (b) any material
agreement, indenture or other instrument, to which any of them is a party or by
which any of them is bound, or to which any of their properties is subject
(except in the case of this clause (b) for such conflicts, breaches, violations
and defaults that would not result in a MediaOne Material Adverse Effect) and
(ii) the performance by MediaOne Group of its obligations hereunder will not
(A) to the best knowledge of MediaOne Group, violate in any material respect any
law, rule, administrative regulation or decree of any court, governmental
agency, regulatory body or other governmental body, or any arbitrator having
jurisdiction over MediaOne Group or the MediaOne Group Subsidiary or any of
their respective properties, or (B) result in the creation or imposition of any
material lien, charge, claim or encumbrance upon any property or asset of
MediaOne Group or the MediaOne Group Subsidiary (except for such liens, charges
and encumbrances that would not have a MediaOne Material Adverse Effect).
Except for permits and similar authorizations required under the Act and the
securities or "Blue Sky" laws of certain jurisdictions and for such permits and
authorizations which have been obtained, no consent, approval, authorization or
order of any court, governmental agency, regulatory body or other governmental
body or financial institution is required in connection with the consummation by
MediaOne Group of the transactions contemplated by this Agreement. There are no
significant subsidiaries (as defined in Rule 1-02 under Regulation S-X) of
MediaOne Group other than the MediaOne Group Subsidiary.
(c) This Agreement has been duly authorized, executed and delivered
by MediaOne Group.
(d) No action, suit or proceeding by or before any court or any
governmental agency, regulatory body or other governmental body or any
arbitrator involving MediaOne Group or any its subsidiaries, or any of their
respective properties is pending or threatened that (i) may have a material
adverse effect on the performance of this Agreement by MediaOne Group or the
consummation by MediaOne Group of any of the transactions contemplated hereby or
(ii) may
5
have a MediaOne Xxxxx Xxxxxxxx Adverse Effect (except, in the case of
this clause (ii) for those that have been disclosed in the Final MediaOne Group
Prospectus).
In respect of the MediaOne Group Furnished Information MediaOne Group
makes the same representations and warranties to AirTouch as MediaOne Group
makes to each Underwriter under paragraph (a)(ii) of this Section 1.
2. REPRESENTATIONS AND WARRANTIES OF AIRTOUCH. AirTouch represents
and warrants to, and agrees with, each Underwriter and MediaOne Group as set
forth below in this Section 2.
(a) AirTouch meets the requirements for use of Form S-3 under the Act
and has filed with the Commission a registration statement (file number
333-56645) on such Form, including a basic prospectus, for the registration
under the Act of the offering and sale of the Shares. AirTouch may have
filed one or more amendments thereto, and may have filed a Preliminary
Final AirTouch Prospectus, each of which has previously been furnished to
you and to MediaOne Group. AirTouch will next file with the Commission
pursuant to Rules 415 and 424(b) a final prospectus with respect to the
Shares and the offering thereof. As filed, such final prospectus or
supplement, except to the extent the Representatives (and, as to
modifications to MediaOne Group Furnished Information, MediaOne Group)
shall agree in writing to a modification, shall be in all substantive
respects in the form furnished to you and MediaOne Group prior to the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that contained in the Preliminary Final AirTouch Prospectus) as AirTouch
has advised you and MediaOne Group, prior to the Execution Time, will be
included or made therein.
(b) On the AirTouch Effective Date, the AirTouch Registration
Statement did or will and when the Final AirTouch Prospectus is first filed
in accordance with Rule 424(b) and on the Closing Date, the Final AirTouch
Prospectus (and any supplement thereto) will, conform in all material
respects with the applicable requirements of the Act, the Exchange Act and
the respective rules thereunder; on the AirTouch Effective Date, the
AirTouch Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to
be stated therein or necessary in order to make the statements therein not
misleading; and, on the date of any filing pursuant to Rule 424(b) and on
the Closing Date, the Final AirTouch Prospectus (together with any
supplement thereto) will not, include 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 AirTouch makes no
representations or warranties as to the information contained in or omitted
from the AirTouch Registration Statement or the Final AirTouch Prospectus
(or any supplement thereto) in reliance upon and in conformity with
(i) information furnished to AirTouch by or on behalf of any Underwriter
through the Representatives for use in connection with the preparation of
the AirTouch Registration Statement or the Final AirTouch Prospectus (or
any supplement thereto) or (ii) the MediaOne Group Furnished Information.
On the date of any filing
6
thereof pursuant to Rule 424(b) and on the Closing Date, the Final
MediaOne Group Prospectus (together with any supplement thereto) will not
include 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 AirTouch makes no representations or warranties
as to the information contained in or omitted from the Final MediaOne
Group Prospectus (or any supplement thereto), other than information
contained in or omitted from the Final MediaOne Group Prospectus (or any
supplement thereto) in reliance upon and in conformity with AirTouch
Furnished Information.
(c) The terms which follow, when used in this Agreement, shall have the
meanings indicated. The term "AirTouch Effective Date" shall mean each
date that the AirTouch Registration Statement and any post-effective
amendment or amendments thereto became or become effective. "Preliminary
Final AirTouch Prospectus" shall mean any preliminary prospectus filed by
AirTouch pursuant to Rule 424(b) which describes the Shares and the
offering thereof and is used prior to filing the Final AirTouch
Prospectus. "Final AirTouch Prospectus" shall mean the prospectus
relating to the Shares that is first filed by AirTouch pursuant to Rule
424(b) after the Execution Time. "AirTouch Registration Statement" shall
mean the registration statement referred to in paragraph (a) of this
Section 2 including incorporated documents, exhibits and financial
statements, as amended at the Execution Time and, in the event any
post-effective amendment thereto becomes effective prior to the Closing
Date, shall also mean such registration statement as so amended. Such
term shall include any Rule 430A Information deemed to be included
therein at the AirTouch Effective Date as provided by Rule 430A.
"AirTouch Furnished Information" means information furnished in writing
by or on behalf of AirTouch for inclusion in the Preliminary Final
MediaOne Prospectus or the Final MediaOne Prospectus; MediaOne Group and
the Underwriters acknowledge that the geographical map of AirTouch's
cellular network appearing on the fold-out inside cover page and the
statements set forth under the caption "Risk Factors -- Potential Future
Issuances of AirTouch Common Stock" (excluding the last sentence thereof)
and under the caption "AirTouch Communications, Inc." in any Preliminary
Final MediaOne Prospectus or the Final MediaOne Group Prospectus, and the
statements set forth in any Preliminary Final AirTouch Prospectus or the
Final AirTouch Prospectus (other than the MediaOne Group Furnished
Information contained therein and other than information furnished to
AirTouch by or on behalf of any Underwriter through the Representatives
for use in connection with the preparation of the AirTouch Registration
Statement or the Final AirTouch Prospectus (or any supplement thereto))
constitute the only such information. Any reference herein to the
AirTouch Registration Statement, any Preliminary Final AirTouch
Prospectus or the Final AirTouch Prospectus shall be deemed to refer to
and include the documents incorporated by reference therein pursuant to
Item 12 of Form S-3 which were filed under the Exchange Act on or before
the AirTouch Effective Date or the issue date of the and Preliminary
Final AirTouch Prospectus or the Final AirTouch Prospectus, as the case
may be; and any reference herein to the terms "amend," "amendment" or
"supplement" with respect to the AirTouch Registration Statement, any
Preliminary Final AirTouch Prospectus or the Final AirTouch Prospectus
7
shall be deemed to refer to and include the filing of any document under
the Exchange Act after the AirTouch Effective Date, or the issue date of
any Preliminary Final AirTouch Prospectus or the Final AirTouch
Prospectus, as the case may be, deemed to be incorporated therein by
reference. The term "Material Adverse Effect" shall mean a material
adverse change or any development involving a prospective material
adverse change in the financial condition or results of operations of
AirTouch and its consolidated subsidiaries, taken as a whole.
(d) Each of AirTouch and each of AirTouch Cellular, a California
corporation, AirTouch of Nevada, a Nevada corporation, AirTouch Cellular,
Inc., a Delaware corporation, and AirTouch International, a California
corporation, (each individually a "AirTouch Subsidiary" and collectively
the "AirTouch Subsidiaries") is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is chartered or
organized. Each of AirTouch and the AirTouch Subsidiaries has been duly
incorporated and has full corporate power and authority to own its
properties and conduct its business as described in the Final AirTouch
Prospectus. Each of AirTouch and the AirTouch Subsidiaries is duly
qualified to do business as a foreign corporation and is in good standing
under the laws of each jurisdiction in which the ownership or leasing of
its properties or the conduct of its business legally require such
qualification, except where the failure so to qualify or be in good
standing would not have a Material Adverse Effect.
(e) There are no options, warrants or other rights to subscribe
for, to purchase or to convert any obligations into or exchange any
securities for, any shares of capital stock of the Company pursuant to
the Company's articles of incorporation, by-laws or other governing
documents or any agreement or other instrument to which the Company or
any of the AirTouch Subsidiaries is a party or by which any of them may
be bound, except as disclosed in the Final AirTouch Prospectus. Neither
the filing of the AirTouch Registration Statement nor the offering or
sale of the Shares as contemplated by this Agreement gives rise to any
rights, other than those which have been waived or satisfied, for or
relating to the registration of any shares of AirTouch Common Stock or
other securities of AirTouch. The capitalization of AirTouch as of June
30, 1998 is as set forth in the AirTouch Final Prospectus and the
AirTouch Common Stock conforms to the description thereof contained in
the AirTouch Prospectus. All of the outstanding shares of capital stock
of each AirTouch Subsidiary have been duly authorized and validly issued,
are fully paid and nonassessable, and, except as otherwise set forth in
the AirTouch Final Prospectus, are owned by AirTouch, directly or through
wholly owned subsidiaries, free and clear of any claim, lien,
encumbrance, security interest, restriction upon voting or transfer,
preemptive rights or any other claim of any third party.
(f) (i) None of the execution or delivery of this Agreement, the
sale of the Shares pursuant to the PIES, or the consummation by AirTouch
of the transactions contemplated hereby will conflict with, result in a
breach or violation of, or constitute a default under (A) the articles of
incorporation, by-laws or other governing documents of AirTouch or any of
the AirTouch Subsidiaries or (B) any material agreement, indenture or
other instrument, to which any of them is a party or by which any of them
is bound, or to which
8
any of their properties is subject (except in the case of this clause (B)
for such conflicts, breaches, violations and defaults that would not
result in a Material Adverse Effect) and (ii) the performance by AirTouch
of its obligations hereunder will not violate in any material respect any
law, rule, administrative regulation or decree of any court, governmental
agency, regulatory body or other governmental body, or any arbitrator
having jurisdiction over AirTouch, the AirTouch Subsidiaries or any of
their respective properties, or result in the creation or imposition of
any material lien, charge, claim or encumbrance upon any property or
asset of AirTouch or any of the AirTouch Subsidiaries (except for such
liens, charges and encumbrances that would not have a Material Adverse
Effect). Except for permits and similar authorizations required under
the Act and the securities or "Blue Sky" laws of certain jurisdictions
and for such permits and authorizations which have been obtained, no
consent, approval, authorization or order of any court, governmental
agency, regulatory body or other governmental body or financial
institution is required in connection with the consummation by AirTouch
of the transactions contemplated by this Agreement.
(g) This Agreement has been duly authorized, executed and
delivered by AirTouch.
(h) No action, suit or proceeding by or before any court or any
governmental agency, regulatory body or other governmental body or any
arbitrator involving AirTouch or any its subsidiaries, or any of their
respective properties is pending or threatened that (i) may have a
material adverse effect on the performance of this Agreement by AirTouch
or the consummation by AirTouch of any of the transactions contemplated
hereby or (ii) may have a Material Adverse Effect (except, in the case of
this clause (ii) for those that have been disclosed in the Final AirTouch
Prospectus); and there is no franchise, contract or other document of a
character required to be described in the AirTouch Registration Statement
or Final AirTouch Prospectus, or to be filed as an exhibit, which is not
described or filed as required.
(i) AirTouch has not taken and shall not take, directly or
indirectly, any action designed to cause or result in, or which has
constituted or which might reasonably be expected to constitute, the
stabilization or manipulation of the price of the shares of AirTouch
Common Stock to facilitate the resale by MediaOne Group of the Shares
pursuant to the offering of the PIES.
(j) AirTouch is not an "investment company" within the meaning of
such term under the Investment Company Act of 1940 as amended, and the
rules and regulations thereunder.
3. PURCHASE AND SALE. (a) Subject to the terms and conditions and
in reliance upon the representations and warranties herein set forth, MediaOne
Group agrees to sell to each Underwriter, and each Underwriter agrees, severally
and not jointly, to purchase from MediaOne Group, the number of PIES set forth
opposite that Underwriter's name on Schedule I hereto, at a price of $56.535 per
PIES.
9
(b) Subject to the terms and conditions and in reliance upon the
representations and warranties herein set forth, MediaOne Group hereby grants an
option to the several Underwriters to purchase, severally and not jointly, up to
3,900,000 of the Option PIES at the same purchase price as the Underwriters
shall pay for the Underwritten PIES. Said option may be exercised only to cover
over-allotments in the sale of the Underwritten PIES by the Underwriters. Said
option may be exercised in whole or in part at any time (but not more than once)
on or before the 30th day after the date of the Final MediaOne Group Prospectus
upon written or telegraphic notice by the Representatives to MediaOne Group
setting forth the number of the Option PIES as to which the several Underwriters
are exercising the option and the settlement date. Delivery of certificates for
the Option PIES, and payment therefor, shall be made as provided in Section 4
hereof. The number of the Option PIES to be purchased by each Underwriter shall
be the same percentage of the total number of the Option PIES to be purchased by
the several Underwriters as such Underwriter is purchasing of the Underwritten
PIES, subject to such adjustments as you in your absolute discretion shall make
to eliminate any fractional Option PIES.
4. DELIVERY AND PAYMENT. Delivery of and payment for the
Underwritten PIES and the Option PIES (if the option provided for in
Section 3(b) hereof shall have been exercised on or before the second business
day prior to the Closing Date) shall be made at 10:00 AM, New York City time, on
August 5, 1998, (or such later date not later than five business days after such
specified date as the Representatives shall designate) which date and time may
be postponed by agreement between the Representatives and MediaOne Group or as
provided in Section 11 hereof (such date and time of delivery and payment for
the PIES being herein called the "Closing Date"). Delivery of the PIES shall be
made to the Representatives for the respective accounts of the several
Underwriters against payment by the several Underwriters through the
Representatives of the purchase price thereof to or upon the order of MediaOne
Group by wire transfer of same day funds to an account specified by MediaOne
Group on or before the second business day prior to the Closing Date. Delivery
of the PIES shall be made through the facilities of the Depositary Trust
Company, unless the Representatives otherwise instruct. Certificates for the
PIES shall be registered in such names and in such denominations as the
Representatives may request not less than two full business days in advance of
the Closing Date.
If the option provided for in Section 3(b) hereof is exercised after
the second business day prior to the Closing Date, MediaOne Group will deliver
the Option PIES (at the expense of MediaOne Group) to the Representatives
through the facilities of the Depositary Trust Company on the date specified by
the Representatives (which shall be within three business days after exercise of
said option) to the Representatives against payment of the purchase price
thereof to or upon the order of MediaOne Group by wire transfer of funds payable
in same day funds to the above-mentioned account specified by MediaOne Group.
If settlement for the Option PIES occurs after the Closing Date, MediaOne Group
and AirTouch will deliver to the Representatives on the settlement date for the
Option PIES, and the obligation of the Underwriters to purchase the Option PIES
shall be conditioned upon receipt of, supplemental opinions, certificates and
letters confirming as of such date the opinions, certificates and letters
delivered on the Closing Date pursuant to Section 7 hereof.
5. OFFERING BY UNDERWRITERS. It is understood that the several
Underwriters propose
10
to offer the PIES for sale to the public as set forth in the Final MediaOne
Group Prospectus.
6. AGREEMENTS OF MEDIAONE GROUP. MediaOne Group agrees with the
several Underwriters that:
(a) MediaOne Group will use its best efforts to cause the MediaOne
Group Registration Statement, if not effective at the Execution Time, and
any amendment thereof to become effective. Prior to the termination of
the offering of the PIES, MediaOne Group will not file any amendment of
the MediaOne Group Registration Statement or supplement (including the
Final MediaOne Group Prospectus or any Preliminary Final MediaOne Group
Prospectus) to the Basic MediaOne Group Prospectus unless MediaOne Group
has furnished you a copy for your review prior to filing and will not
file any such proposed amendment or supplement to which you reasonably
object unless MediaOne Group shall conclude in good faith that such
filing is required by applicable law. Subject to the foregoing sentence,
MediaOne Group will cause the Final MediaOne Group Prospectus, properly
completed, and any supplement thereto to be filed with the Commission
pursuant to the applicable paragraph of Rule 424(b) within the time
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. MediaOne Group will promptly
advise the Representatives (i) when the MediaOne Group Registration
Statement, if not effective at the Execution Time, and any amendment
thereto, shall have become effective, (ii) when the Final MediaOne Group
Prospectus, and any supplement thereto, shall have been filed with the
Commission pursuant to Rule 424(b), (iii) when, prior to termination of
the offering of the PIES, any amendment to the MediaOne Group
Registration Statement shall have been filed or become effective, (iv) of
any request by the Commission for any amendment of the MediaOne Group
Registration Statement or supplement to the Final MediaOne Group
Prospectus or for any additional information, (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the MediaOne
Group Registration Statement or the institution or threatening of any
proceeding for that purpose and (vi) of the receipt by MediaOne Group of
any notification with respect to the suspension of the qualification of
the PIES for sale in any jurisdiction or the initiation or threatening of
any proceeding for such purpose. MediaOne Group will use its best
efforts to prevent the issuance of any such stop order and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the PIES is
required to be delivered under the Act, any event occurs as a result of
which the Final MediaOne Group Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the MediaOne Group Registration Statement or
supplement the Final MediaOne Group Prospectus to comply with the Act or
the Exchange Act or the respective rules thereunder, MediaOne Group
promptly will prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 6, an amendment or supplement
which will correct such statement or omission or effect such compliance.
11
(c) As soon as practicable, MediaOne Group will make generally
available to its security holders an earnings statement or statements of
MediaOne Group and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(d) MediaOne Group will furnish to the Representatives and counsel
for the Underwriters, without charge, copies of the MediaOne Group
Registration Statement (including exhibits thereto) and to each other
Underwriter a copy of the MediaOne Group Registration Statement (without
exhibits thereto) and, so long as delivery of a prospectus by an
Underwriter or dealer may be required by the Act, as many copies of each
Preliminary Final MediaOne Group Prospectus and the Final MediaOne Group
Prospectus and any supplement thereto as the Representatives may
reasonably request. MediaOne Group will pay the expenses of printing or
other production of the MediaOne Group Registration Statement, each
Preliminary Final MediaOne Group Prospectus and the Final MediaOne Group
Prospectus (other than with respect to the Preliminary Final AirTouch
Prospectus and Final AirTouch Prospectus, respectively, attached a
thereto, which shall be paid by AirTouch).
(e) MediaOne Group will arrange for the qualification of the PIES
and the Shares for sale under the laws of such jurisdictions as the
Representatives may designate and will maintain such qualifications in
effect so long as required for the distribution of the PIES and the
Shares; provided, however, that in connection therewith MediaOne Group
shall not be required to qualify as a foreign corporation or to file a
general consent to service of process in any jurisdiction.
(f) MediaOne Group will not, for a period of 90 days following the
Execution Time, without the prior written consent of Xxxxxx Brothers
Inc., offer for sale, sell or contract to sell, or otherwise dispose of,
or announce the offering of, or file or cause the filing of any
registration statement under the Securities Act with respect to, any
shares of AirTouch Common Stock or any securities convertible into, or
exchangeable for, or warrants to acquire, shares of AirTouch Common Stock
(other than the PIES).
7. AGREEMENTS OF AIRTOUCH. AirTouch agrees with the several
Underwriters that:
(a) AirTouch will use its best efforts to cause the AirTouch
Registration Statement, if not effective at the Execution Time, and any
amendment thereof to become effective. Prior to the termination of the
offering of the PIES, AirTouch will not file any amendment of the
AirTouch Registration Statement or supplement (including the Final
AirTouch Prospectus) to the Preliminary Final AirTouch Prospectus or the
Final AirTouch Prospectus unless AirTouch has furnished you a copy for
your review prior to filing and will not file any such proposed amendment
or supplement to which you reasonably object unless AirTouch shall
conclude in good faith that such filing is required by applicable law.
Subject to the foregoing sentence, AirTouch will cause the Final AirTouch
Prospectus, properly completed, and any supplement thereto to be filed
with the Commission pursuant to the applicable paragraph of Rule 424(b)
within the time
12
period prescribed and will provide evidence satisfactory to the
Representatives of such timely filing. AirTouch will promptly advise the
Representatives (i) when the AirTouch Registration Statement, if not
effective at the Execution Time, and any amendment thereto, shall have
become effective, (ii) when the Final AirTouch Prospectus, and any
supplement thereto, shall have been filed with the Commission pursuant to
Rule 424(b), (iii) when, prior to termination of the offering of the
Shares, any amendment to the AirTouch Registration Statement shall have
been filed or become effective, (iv) of any request by the Commission for
any amendment of the AirTouch Registration Statement or supplement to the
Final AirTouch Prospectus or for any additional information, (v) of the
issuance by the Commission of any stop order suspending the effectiveness
of the AirTouch Registration Statement or the institution or threatening
of any proceeding for that purpose and (vi) of the receipt by AirTouch of
any notification with respect to the suspension of the qualification of
the Shares for sale in any jurisdiction or the initiation or threatening
of any proceeding for such purpose. AirTouch will use its best efforts
to prevent the issuance of any such stop order and, if issued, to obtain
as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Shares is
required to be delivered under the Act (i) any event occurs as a result
of which the Final AirTouch Prospectus as then supplemented would include
any untrue statement of a material fact or omit to state any material
fact necessary to make the statements therein in the light of the
circumstances under which they were made not misleading, or (ii) it shall
be necessary to amend the AirTouch Registration Statement or supplement
the Final AirTouch Prospectus to comply with the Act or the Exchange Act
or the respective rules thereunder, AirTouch will promptly notify the
Underwriters and will promptly prepare and file with the Commission,
subject to the second sentence of paragraph (a) of this Section 7, an
amendment or supplement which will correct such statement or omission or
effect such compliance.
(c) As soon as practicable, AirTouch will make generally available
to its security holders and to the Representatives an earnings statement
or statements of AirTouch and its consolidated subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) AirTouch will furnish to the Representatives and counsel for
the Underwriters, without charge, copies of the AirTouch Registration
Statement (including exhibits thereto) and to each other Underwriter a
copy of the AirTouch Registration Statement (without exhibits thereto)
and, so long as delivery by an Underwriter or dealer of a prospectus with
respect to the PIES may be required by the Act, as many copies of each
Preliminary Final AirTouch Prospectus and the Final AirTouch Prospectus
and any supplement thereto as the Representatives may reasonably request.
AirTouch will pay the expenses of printing or other production of the
AirTouch Registration Statement, each Preliminary Final AirTouch
Prospectus and the Final AirTouch Prospectus.
(e) AirTouch will cooperate with MediaOne Group for purposes of
the qualification
13
of the PIES and the Shares for sale under the laws of such jurisdictions
as the Representatives may designate and will use all reasonable efforts
to maintain such qualifications in effect so long as required for the
sale of the Shares pursuant to the distribution of the PIES; provided,
however, that in connection therewith, AirTouch shall not be required to
qualify to do business in any jurisdiction where it is now not qualified
or to take any action which would subject it to general or unlimited
service of process, or to taxation, in any jurisdiction where it is not
now so subject.
(f) AirTouch will not, for a period of 90 days following the
Execution Time, without the prior written consent of Xxxxxx Brothers
Inc., offer for sale, sell or contract to sell, or otherwise dispose of,
or announce the offering of, or file or cause the filing of any
registration statement under the Securities Act with respect to, (i) any
shares of AirTouch Common Stock or any securities convertible into, or
exchangeable for, or warrants to acquire, shares of AirTouch Common Stock
(other than the Shares in connection with the offering by MediaOne Group
of the PIES); PROVIDED, HOWEVER, that AirTouch may sell AirTouch Common
Stock or grant options to purchase the same, in either case, pursuant to
any employee stock option plan, stock ownership plan or dividend
reinvestment plan of AirTouch in effect at the Execution Time.
(g) AirTouch will furnish to the Trustee copies of its annual
report to stockholders and reports on Forms 10-K and 10-Q in sufficient
quantities for transmission to holders of the PIES as soon as practicable
after such reports are required to be filed with the Commission. The
cost of production of such reports will be borne by AirTouch and the cost
of transmitting such reports to the holders will be borne by MediaOne
Group.
(h) AirTouch will take such actions as may be reasonably necessary
to comply with the rules and regulations of the NYSE in respect of the
offering of the Shares contemplated hereby.
8. CONDITIONS TO THE OBLIGATIONS OF THE UNDERWRITERS. The obligations
of the Underwriters to purchase the PIES shall be subject to the accuracy of
the representations and warranties on the part of MediaOne Group and AirTouch
contained herein as of the Execution Time, the Closing Date and any
settlement date pursuant to Section 4 hereof, to the accuracy of the
statements of MediaOne Group and AirTouch made in any certificates pursuant
to the provisions hereof, to the performance by MediaOne Group and AirTouch
of their respective obligations hereunder and to the following additional
conditions:
(a) If the MediaOne Group Registration Statement or the AirTouch
Registration Statement has not become effective prior to the Execution Time,
unless the Representatives agree in writing to a later time, such MediaOne Group
or AirTouch Registration Statement will become effective not later than (i) 6:00
PM, New York City time, on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM, New York City
time, on such date or (ii) 12:00 Noon, New York City time, on the business day
following the day on which the public offering price was determined, if such
determination occurred after 3:00 PM, New York City time, on such date; if
filing of the Final MediaOne Group Prospectus or the
14
Final AirTouch Prospectus, or any supplements thereto, is required pursuant
to Rule 424(b), such Final MediaOne Group Prospectus or Final AirTouch
Prospectus, and any such supplements, will be filed in the manner and within
the time period required by Rule 424(b); and no stop order suspending the
effectiveness of the MediaOne Group Registration Statement or the AirTouch
Registration Statement shall have been issued and no proceedings for that
purpose shall have been instituted or threatened.
(b) MediaOne Group shall have furnished to the Representatives the
opinion of Xxxxxxx X. Xxxxx, Esq., Corporate Counsel of MediaOne Group, dated
the Closing Date, to the effect that:
(i) each of MediaOne Group and the MediaOne Group Subsidiary has
been duly incorporated and is validly existing as a corporation in good
standing under the laws of the jurisdiction in which it is organized,
with full corporate power and authority to own its properties and
conduct its business as described in the Final MediaOne Group
Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification wherein it owns or leases material
properties or conducts material business, except where failure to so
qualify would not have a material adverse effect on MediaOne Group and
the MediaOne Group Subsidiary, taken as a whole;
(ii) no consent, approval, authorization or order of any
court or governmental agency or body is required for the consummation of
the transactions contemplated herein, except such as have been obtained
under the Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the distribution of the PIES and the
Shares by MediaOne Group and such other approvals (specified in such
opinion) as have been obtained; and
(iii) to the best knowledge of such counsel, MediaOne Group has
good and marketable title to the Shares and owns such Shares free and
clear of all liens, encumbrances, equities and claims.
In rendering such opinion, such counsel may rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Colorado or the
United States, to the extent such counsel deems proper and specified in such
opinion, the State of Delaware, upon the opinion of other counsel of good
standing whom such counsel believes to be reliable and who are satisfactory to
counsel for the Underwriters and (B) as to matters of fact, to the extent such
counsel deems proper, on certificates of responsible officers of MediaOne Group
and public officials. References to the Final MediaOne Group Prospectus in this
paragraph (b) include any supplements thereto at the Closing Date.
(c) MediaOne Group shall have furnished to the Representatives the
opinion of Weil, Gotshal & Xxxxxx, counsel for MediaOne Group, dated as of the
Closing Date, to the effect that:
(i) MediaOne Group has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the State of Delaware,
with full corporate
15
power and authority to own its properties and conduct its business as
described in the Final MediaOne Group Prospectus;
(ii) the Indenture has been duly authorized, executed and
delivered, has been duly qualified under the Trust Indenture Act, and
(assuming the due authorization, execution and delivery thereof by the
Trustee) constitutes a legal, valid and binding instrument enforceable
against MediaOne Group in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, reorganization,
insolvency, moratorium or other laws affecting creditors' rights
generally from time to time in effect); and the PIES have been duly
authorized and, when executed and authenticated in accordance with the
provisions of the Indenture and delivered to and paid for by the
Underwriters pursuant to this Agreement will constitute legal, valid and
binding obligations of MediaOne Group entitled to the benefits of the
Indenture;
(iii) the MediaOne Group Registration Statement was declared
effective under the Act; any required filing of the Basic MediaOne Group
Prospectus, any Preliminary Final MediaOne Group Prospectus and the
Final MediaOne Group Prospectus, and of any supplements thereto,
pursuant to Rule 424(b) has been made in the manner and within the time
period required by Rule 424(b); to the best knowledge of such counsel,
no stop order suspending the effectiveness of the MediaOne Group
Registration Statement has been issued, no proceedings for that purpose
have been instituted or threatened;
(iv) this Agreement has been duly authorized, executed and
delivered by MediaOne Group; and
(v) The statements in the Basic MediaOne Group Prospectus under
the heading "Description of Debt Securities" and the statements in the
Final MediaOne Group Prospectus under the heading "Description of the
PIES", insofar as such statements constitute a summary of certain
provisions of the Indenture and the PIES, are accurate in all material
respects.
In addition, such counsel shall state that it has participated in
conferences with officers and other representatives of MediaOne Group,
representatives of the independent public accountants for MediaOne Group and
representatives of the Underwriters and counsel for the Underwriters, at which
conferences the contents of the MediaOne Group Registration Statement and the
Final MediaOne Group Prospectus and related matters were discussed; such counsel
has not independently verified and is not passing upon and assumes no
responsibility for the accuracy, completeness or fairness of the statements
contained in the MediaOne Group Registration Statement and the Final MediaOne
Group Prospectus, except for the statements in the Basic MediaOne Group
Prospectus under the heading "Description of Debt Securities" and the statements
in the Final MediaOne Group Prospectus under the heading "Description of the
PIES"; however, based upon such counsel's participation in the aforesaid
conferences, no facts have come to its attention which lead it to believe that
the MediaOne Group Registration Statement, as of the MediaOne Group Effective
Date, and the Final MediaOne Group Prospectus (other than the financial
statements and other financial, accounting and operating (as described
16
below) information contained therein, the AirTouch Furnished Information, and
exhibit 25 to the MediaOne Group Registration Statement, as to which such
counsel need express no opinion) did not comply as to form in all material
respects with the applicable requirements of the Act, the Exchange Act and
the Trust Indenture Act and the respective rules thereunder; and such counsel
has no reason to believe that at the Effective Date the MediaOne Group
Registration Statement (other than the financial statements and schedules and
other financial, accounting and operating (as described below) information
included therein and exhibit 25 to the MediaOne Group Registration Statement)
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 included therein not misleading or that, as of the date thereof or
on the Closing Date, the Final MediaOne Group Prospectus (other than the
financial statements and schedules and other financial, accounting and
operating (as described below) information included therein, the AirTouch
Furnished Information, and exhibit 25 to the MediaOne Group Registration
Statement) included or includes any untrue statement of a material fact or
omitted or omits to state a material fact required to be stated therein or
necessary to make the statements included therein, in the light of the
circumstances under which they were made, not misleading. For purposes of
this paragraph, the phrase "operating information" means information of the
type included in the Final MediaOne Group Prospectus in the last item under
the caption "Summary Financial Data."
(d) The Representatives shall have received from Cleary, Gottlieb,
Xxxxx & Xxxxxxxx, counsel for the Underwriters, such opinion or opinions,
dated the Closing Date, with respect to the issuance and sale of the PIES,
the Indenture, the MediaOne Group Registration Statement, the Final MediaOne
Group Prospectus (together with any supplement thereto), the Shares, the
AirTouch Registration Statement, the Final AirTouch Prospectus (together with
any supplement thereto) and other related matters as the Representatives may
reasonably require, and MediaOne Group and AirTouch shall have furnished to
such counsel such documents as they request for the purpose of enabling them
to pass upon such matters.
(e) AirTouch shall have furnished to the Representatives and to
MediaOne Group the opinion of Xxxxxxxx X. Xxxx, Esq., Senior Vice President,
Legal, External Affairs and Secretary for AirTouch, dated as of the Closing
Date, to the effect that:
(i) each of AirTouch and the AirTouch Subsidiaries has been duly
incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction in which it is organized with full
corporate power and authority to own, lease and operate its properties
and conduct its business as described in the Final AirTouch Prospectus
and, in the case of AirTouch, to enter into and perform this Agreement;
each of AirTouch and the AirTouch Subsidiaries is duly qualified to do
business as a foreign corporation and is in good standing under the laws
of each jurisdiction in which the character of the business conducted by
it or the location of the properties owned or leased by it makes such
qualification necessary, except where the failure to be so qualified or
in good standing would not have a Material Adverse Effect;
(ii) all of the outstanding shares of AirTouch Common Stock
have been duly authorized, validly issued, fully paid and nonassessable,
with no personal liability
17
attaching to the ownership thereof; except as described in the Final
AirTouch Prospectus, there are no preemptive rights, options, warrants
or other rights to subscribe for, to purchase or to convert any
obligations into or exchange any securities for, or any restriction upon
the voting or transfer of, any shares of capital stock of AirTouch
pursuant to the Amended and Restated Articles of Incorporation of
AirTouch, the Amended and Restated By-laws of AirTouch, or, to the
knowledge of such counsel, any agreement or other instrument to which
AirTouch is a party or by which it is bound; to the knowledge of such
counsel, neither the filing of the AirTouch Registration Statement nor
the offering or sale of the Shares pursuant to the PIES as contemplated
by this Agreement gives rise to any rights, other than those which have
been waived or satisfied, for or relating to the registration of any
shares of AirTouch Common Stock or other securities of AirTouch; and the
authorized, issued and outstanding capital stock of AirTouch at June 30,
1998 is as set forth under "Capitalization" in the Final AirTouch
Prospectus and the AirTouch Common Stock conforms to the description
thereof contained in the Final AirTouch Prospectus;
(iii) to the best knowledge of such counsel, there is no
franchise, contract or other document of a character required to be
described in the AirTouch Registration Statement or Final AirTouch
Prospectus, or to be filed as an exhibit thereto, which is not described
or filed as required; all descriptions in the Final AirTouch Prospectus
of statutes, regulations, legal or governmental proceedings, contracts
and other documents are accurate in all material respects and fairly
present the information required to be shown;
(iv) the AirTouch Registration Statement has become effective
under the Act; any required filing of the Final AirTouch Prospectus, and
any supplements thereto, pursuant to Rule 424(b) has been made in the
manner and within the time period required by Rule 424(b); to the
knowledge of such counsel, no stop order suspending the effectiveness of
the AirTouch Registration Statement has been issued, and no proceedings
for that purpose have been instituted or threatened;
(v) the AirTouch Registration Statement and the Final AirTouch
Prospectus (except the financial statements and schedules and other
financial data contained therein, as to which such counsel need express
no opinion) comply as to form in all material respects with the
requirements of the Act and the rules and regulations thereunder;
(vi) this Agreement has been duly authorized, executed and
delivered by AirTouch; the execution and delivery of this Agreement by
AirTouch and the consummation by AirTouch of the transactions
contemplated hereby will not conflict with, result in a breach or
violation of, or constitute a default under (a) the Amended and Restated
Articles of Incorporation of AirTouch, the Amended and Restated By-laws
of AirTouch or any of the AirTouch Subsidiaries or (b) any material
agreement, indenture or other instrument to which any of them is a party
or by which any of them is bound filed as an exhibit to the AirTouch
Registration Statement or otherwise known to such counsel (except, in
the case of clause (a), for such conflicts, breaches, violations and
defaults that would not result in a Material Adverse Effect), or, to the
knowledge of such counsel, any
18
law, rule, administrative regulation or decree of any court,
governmental agency, regulatory body or other governmental body, or any
arbitrator having jurisdiction over AirTouch;
(vii) no consent, approval, authorization or order of any court,
governmental agency, regulatory body or other governmental body is
required for the performance of this Agreement by AirTouch or the
consummation by AirTouch of the transactions contemplated hereby, except
such as have been obtained under the Act;
(viii) to the knowledge of such counsel, there is no action,
suit or proceeding by or before any court or governmental agency,
regulatory body or other governmental body or any arbitrator involving
AirTouch required to be disclosed in the AirTouch Registration
Statement, other than those disclosed therein; and
(ix) the Shares are duly listed and admitted for trading on
the NYSE; the AirTouch Common Stock conforms in all material respects to
the description thereof contained in the Final AirTouch Prospectus.
In addition such counsel shall state that although she is not passing
upon and has not checked the accuracy or completeness, or otherwise verified the
information furnished in the AirTouch Registration Statement and the Final
AirTouch Prospectus (except to the extent otherwise set forth above), she has
considered the information required to be furnished therein, and on the basis of
such consideration, but without independent checking and verification, she has
no reason to believe that, at the AirTouch Effective Date, the AirTouch
Registration Statement and the basic prospectus included therein at the AirTouch
Effective Date contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading or the AirTouch Furnished Information
contained in the Final MediaOne Prospectus as of the date of such prospectus or
on the Closing Date contained or contains any untrue statement of a material
fact or omitted or omits to state any material fact required to be stated
therein or necessary to make the statements therein, in the light of the
circumstances in which they were made, not misleading; it being understood that
with respect to the matters covered by this paragraph, counsel shall express no
opinion as to the financial statements and related schedules and other financial
or statistical data contained in or omitted from the AirTouch Registration
Statement or the AirTouch Furnished Information contained in the Final MediaOne
Prospectus.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State of
California or the United States, to the extent she deems proper and specified in
such opinion, upon the opinion of other counsel of good standing whom such
counsel believes to be reliable and who are satisfactory to counsel for the
Underwriters and (B) as to matters of fact, to the extent such counsel deems
proper, on certificates of responsible officers of AirTouch and public
officials. References to the Final AirTouch Prospectus in this paragraph (e)
include any supplements thereto at the Closing Date.
(f) MediaOne Group shall have furnished to the Representatives a
certificate of MediaOne Group, signed by the Executive Vice President and Chief
Financial Officer of
19
MediaOne Group or Senior Vice President and Treasurer of MediaOne Group,
dated the Closing Date, to the effect that the signer of such certificate has
carefully examined the MediaOne Group Registration Statement, the Final
MediaOne Group Prospectus, any supplements to the Final MediaOne Group
Prospectus and this Agreement and that to the best of his knowledge after
reasonable investigation:
(i) the representations and warranties of MediaOne Group in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and
MediaOne Group has complied with all the agreements and satisfied all
the conditions on its part to be performed or satisfied at or prior to
the Closing Date;
(ii) no stop order suspending the effectiveness of the
MediaOne Group Registration Statement has been issued and no proceedings
for that purpose have been instituted or, to MediaOne Group's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Final MediaOne Group Prospectus (exclusive of any
supplement thereto), there has been no material adverse change in the
financial position or results of operations of MediaOne Group and its
subsidiaries taken as a whole, whether or not arising from transactions
in the ordinary course of business, except as set forth in or
contemplated in the Final MediaOne Group Prospectus (exclusive of any
supplement thereto).
(g) AirTouch shall have furnished to the Representatives a
certificate of AirTouch, signed by one of: the Chairman of the Board, the Chief
Executive Officer, the President, any Vice Chairman, or any Vice President, and
one of: the Chief Financial Officer, the Treasurer or any Assistant Treasurer
of AirTouch, dated the Closing Date, to the effect that the signers of such
certificate have carefully examined the AirTouch Registration Statement, the
Final AirTouch Prospectus, any supplements to the Final AirTouch Prospectus and
this Agreement and that:
(i) the representations and warranties of AirTouch in this
Agreement are true and correct in all material respects on and as of the
Closing Date with the same effect as if made on the Closing Date and
AirTouch has complied with all the agreements and satisfied all the
conditions on its part to be performed or satisfied at or prior to the
Closing Date;
(ii) no stop order suspending the effectiveness of the
AirTouch Registration Statement has been issued and no proceedings for
that purpose have been instituted and are pending or, to his or her
knowledge, threatened as of such date; and
(iii) since the date of the most recent financial statements
included in the Final AirTouch Prospectus (exclusive of any supplement
thereto), there has been no material adverse change or any development
involving a prospective material adverse change in the Financial
condition or results of operations of AirTouch and its subsidiaries
taken as a whole, whether or not arising from transactions in the
ordinary course of business, except as set forth in or contemplated by
the Final AirTouch Prospectus (exclusive of any
20
supplement thereto).
(i) At the Execution Time and at the Closing Date, Xxxxxx Xxxxxxxx
LLP, accountants for MediaOne Group for the years ended December 31, 1996 and
1997, shall have furnished to the Representatives a letter or letters, dated
respectively as of the Execution Time and as of the Closing Date, in form and
substance satisfactory to the Representatives, confirming that they are
independent accountants within the meaning of the Act and the Exchange Act and
the respective applicable published rules and regulations thereunder and stating
in effect that:
(1) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the MediaOne
Group Registration Statement and the Final MediaOne Group Prospectus and
reported on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(2) on the basis of a reading of the latest unaudited financial
statements made available by the MediaOne Group and its subsidiaries;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of the meetings of
the shareholders, directors and executive, finance, audit committees of
MediaOne Group and its subsidiaries; and inquiries of certain officials
of MediaOne Group who have responsibility for financial and accounting
matters of MediaOne Group and its subsidiaries as to transactions and
events subsequent to December 31, 1997, nothing came to their attention
which caused them to believe that:
(a) any unaudited financial statements included or
incorporated in the MediaOne Group Registration Statement and the
Final MediaOne Group Prospectus do not comply in form in all
material respects with applicable accounting requirements and with
the published rules and regulations of the Commission with respect
to financial statements included or incorporated in quarterly
reports on Form 10-Q under the Exchange Act; or said unaudited
financial statements are not in conformity with generally accepted
accounting principles applied on a basis substantially consistent
with that of the audited financial statements included or
incorporated in the MediaOne Group Registration Statement and the
Final MediaOne Group Prospectus; or
(b) with respect to the period subsequent to June 30, 1998,
there were any changes, at a specified date not more than five
business days prior to the date of the letter, in the capital stock
of MediaOne Group, or any increase in the consolidated long-term
debt of MediaOne Group and its subsidiaries, or decreases in
consolidated net current assets or net assets as compared with the
amounts shown on the June 30, 1998 consolidated balance sheet
included or
21
incorporated in the MediaOne Group Registration Statement and the
Final MediaOne Group Prospectus, or for the period from July 1,
1998 to such specified date there were any decreases, as compared
with the corresponding period in the preceding year in consolidated
revenues, net income or net income per share of MediaOne Group and
its subsidiaries, except in all instances for changes or decreases
set forth in such letter, in which case the letter shall be
accompanied by an explanation by MediaOne Group as to the
significance thereof unless said explanation is not deemed
necessary by the Representatives;
(c) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of MediaOne Group and its subsidiaries)
set forth or incorporated in the MediaOne Group Registration
Statement and the Final MediaOne Group Prospectus and in Exhibit 12
to the MediaOne Group Registration Statement, agrees with the
accounting records of MediaOne Group and its subsidiaries,
excluding any questions of legal interpretation.
(ii) At the Execution Time and at the Closing Date,
PricewaterhouseCoopers LLP, accountants for MediaOne Group for the year ended
December 31, 1995, shall have furnished to the Representatives a letter or
letters, dated respectively as of the Execution Time and as of the Closing
Date, in form and substance satisfactory to the Representatives, confirming
that they are independent accountants within the meaning of the Act and the
Exchange Act and the respective applicable published rules and regulations
thereunder and stating in effect that:
(1) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the MediaOne
Group Registration Statement and the Final MediaOne Group Prospectus and
reported on by them comply in form in all material respects with the
applicable accounting requirements of the Act and the Exchange Act and
the related published rules and regulations;
(2) they have performed certain other specified procedures as a
result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of MediaOne Group and its subsidiaries)
specified by the Representatives set forth or incorporated in the
MediaOne Group Registration Statement and the Final MediaOne Group
Prospectus, agrees with the accounting records of MediaOne Group and its
subsidiaries, excluding any questions of legal interpretation.
References to the Final MediaOne Group Prospectus in this paragraph (h) include
any supplement thereto at the date of the letter.
22
(i) At the Execution Time and at the Closing Date,
PricewaterhouseCoopers LLP, accountants for AirTouch, shall have furnished to
the Representatives a letter or letters, dated respectively as of the Execution
Time and as of the Closing Date, in form and substance satisfactory to the
Representatives, confirming that they are independent accountants within the
meaning of the Act and the Exchange Act and the respective applicable published
rules and regulations thereunder and stating in effect that:
(i) in their opinion the audited financial statements and
financial statement schedules included or incorporated in the AirTouch
Registration Statement and the Final AirTouch Prospectus and reported on
by them comply in form in all material respects with the applicable
accounting requirements of the Act and the Exchange Act and the related
published rules and regulations;
(ii) on the basis of a reading of the latest unaudited
financial statements made available by AirTouch and its subsidiaries;
carrying out certain specified procedures (but not an examination in
accordance with generally accepted auditing standards) which would not
necessarily reveal matters of significance with respect to the comments
set forth in such letter; a reading of the minutes of the meetings of
the shareholders, directors and committees of AirTouch and its
subsidiaries; and inquiries of certain officials of AirTouch who have
responsibility for financial and accounting matters of AirTouch and its
subsidiaries as to transactions and events subsequent to December 31,
1997, nothing came to their attention which caused them to believe that:
(1) any unaudited financial statements included or
incorporated in the AirTouch Registration Statement and the Final
AirTouch Prospectus do not comply in form in all material respects
with applicable accounting requirements and with the published
rules and regulations of the Commission with respect to financial
statements included or incorporated in quarterly reports on Form
10-Q under the Exchange Act; or said unaudited financial statements
are not in conformity with generally accepted accounting principles
applied on a basis substantially consistent with that of the
audited financial statements included or incorporated in the
AirTouch Registration Statement and the Final AirTouch Prospectus;
or
(2) with respect to the period subsequent to June 30, 1998,
there were any increases, at a specified date not more than five
business days prior to the date of the letter, in borrowings under
the commercial paper program of AirTouch and its consolidated
subsidiaries as compared with the amounts shown on the June 30,
1998 consolidated balance sheet included or incorporated in the
AirTouch Registration Statement and the Final AirTouch Prospectus,
or for the period from July 1, 1998 to such specified date there
were any decreases, as compared with the corresponding period in
the preceding year, in consolidated operating revenues, except in
all instances for changes or decreases set forth in such letter, in
which case the letter shall be accompanied by an explanation by
AirTouch as to the significance thereof unless said explanation is
not deemed necessary
23
by the Representative.
(iii) they have performed certain other specified procedures as
a result of which they determined that certain information of an
accounting, financial or statistical nature (which is limited to
accounting, financial or statistical information derived from the
general accounting records of AirTouch and its subsidiaries) set forth
or incorporated in the AirTouch Registration Statement and the Final
AirTouch Prospectus, agrees with the accounting records of AirTouch and
its subsidiaries, excluding any questions of legal interpretation.
References to the Final AirTouch Prospectus in this paragraph (i) include any
supplement thereto at the date of the letter.
(j) At the Execution Time and at the Closing Date, Xxxxxx Xxxxxxxx
LLP, accountants for the former US WEST NewVector Group, Inc., shall have
furnished to the Representatives a letter or letters related to US WEST
NewVector Group, Inc., dated respectively as of the Execution Time and as of the
Closing Date, in form and substance satisfactory to the Representatives.
(k) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in each of the MediaOne Group Registration Statement
and the AirTouch Registration Statements (exclusive of any amendment thereof)
and each of the Final MediaOne Group Prospectus and the Final AirTouch
Prospectus (exclusive of any supplement thereto), there shall not have been any
change, or any development involving a prospective change, in or affecting the
business or properties of either MediaOne Group or AirTouch and their respective
subsidiaries, taken as a whole, the effect of which is, in the judgment of the
Representatives, so material and adverse as to make it impractical or
inadvisable to proceed with the offering or delivery of the PIES as contemplated
by the MediaOne Group Registration Statement (exclusive of any amendment
thereof) and the Final MediaOne Group Prospectus (exclusive of any supplement
thereto).
(l) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of MediaOne Group's or AirTouch's debt securities
by any "nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended or
potential decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(m) The PIES shall have been listed and admitted and authorized for
trading on the New York Stock Exchange, and satisfactory evidence of such
actions shall have been provided to the Representatives.
(n) Prior to the Closing Date, each of MediaOne Group and AirTouch
shall have furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably request.
If any of the conditions specified in this Section 8 shall not have
been fulfilled in
24
all material respects when and as provided in this Agreement, or if any of
the opinions and certificates mentioned above or elsewhere in this Agreement
shall not be in all material respects reasonably satisfactory in form and
substance to the Representatives and counsel for the Underwriters, this
Agreement and all obligations of the Underwriters hereunder may be canceled
at, or at any time prior to, the Closing Date by the Representatives. Notice
of such cancellation shall be given to MediaOne Group and AirTouch in writing
or by telephone or telegraph confirmed in writing.
9. REIMBURSEMENT OF UNDERWRITERS' EXPENSES. If the sale of the PIES
provided for herein is not consummated because any condition to the obligations
of the Underwriters set forth in Section 8 hereof is not satisfied, because of
any termination pursuant to Section 12 hereof or because of any refusal,
inability or failure on the part of MediaOne Group or AirTouch to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, MediaOne Group will reimburse the
Underwriters severally upon demand for all reasonable out-of-pocket expenses
(including reasonable fees and disbursements of counsel) that shall have been
incurred by them in connection with the proposed purchase and sale of the PIES.
The Underwriters agree to pay such expenses, fees and disbursements in any other
event. In no event will MediaOne Group be liable to any of the Underwriters for
damages on account of loss of anticipated profits.
10. INDEMNIFICATION AND CONTRIBUTION. (a) MediaOne Group agrees to
indemnify and hold harmless each Underwriter and AirTouch, the directors,
officers, employees and agents of each Underwriter or AirTouch, and each person
who controls any Underwriter or AirTouch within the meaning of either the Act or
the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which they or any of them may become subject under the Act,
the Exchange Act or other Federal or state statutory law or regulation, at
common law or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue
statement or alleged untrue statement of a material fact contained in the
MediaOne Group Registration Statement as originally filed or in any amendment
thereof, or in the Basic MediaOne Group Prospectus, any Preliminary Final
MediaOne Group Prospectus or the Final MediaOne Group Prospectus, or in any
amendment thereof or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
agrees to reimburse each such indemnified party, as incurred, for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED, HOWEVER,
that MediaOne Group will not be liable under the indemnity agreement in this
paragraph (a) to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made in the MediaOne Group
Registration Statement as originally filed or in any amendment thereof, or in
the Basic MediaOne Group Prospectus, any Preliminary Final MediaOne Group
Prospectus or the Final MediaOne Group Prospectus, or in any amendment thereof
or supplement thereto in reliance upon and in conformity with (A) written
information furnished to MediaOne Group by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein or (B) the
AirTouch Furnished Information (including the information contained in any
Preliminary Final AirTouch
25
Prospectus or Final AirTouch Prospectus included in any such document (other
than information contained in or omitted from any such Preliminary Final
AirTouch Prospectus or Final AirTouch Prospectus in reliance on and
conformity with MediaOne Group Furnished Information)); and PROVIDED, FURTHER
that MediaOne Group shall not be liable to any Underwriter under the
indemnity agreement in this paragraph (a) with respect to the Preliminary
Final MediaOne Group Prospectus to the extent that any such loss, claim,
damage or liability of such Underwriter results from the fact that such
Underwriter sold PIES to a person as to whom it shall be established that
there was not sent or given, at or prior to the written confirmation of such
sale, a copy of the Final MediaOne Group Prospectus (excluding documents
incorporated by reference), as the case may be, or of the Final MediaOne
Group Prospectus as then amended or supplemented (excluding documents
incorporated by reference) in any case where such delivery is required by the
Act and where MediaOne Group has previously furnished copies thereof in
sufficient quantity to such Underwriter and the loss, claim, damage or
liability of such Underwriter results from an untrue statement or omission of
a material fact contained in the Final Preliminary MediaOne Group Prospectus
and corrected in the Final MediaOne Group Prospectus (excluding documents
incorporated by reference) or in the Final MediaOne Group Prospectus as then
amended or supplemented (excluding documents incorporated by reference).
This indemnity agreement will be in addition to any liability which MediaOne
Group may otherwise have.
(b) AirTouch agrees to indemnify and hold harmless each Underwriter, the
directors, officers, employees and agents of each Underwriter, and each
person who controls any Underwriter within the meaning of either the Act or
the Exchange Act, and AirTouch agrees to indemnify and hold harmless MediaOne
Group, the directors, officers, employees and agents of MediaOne Group, and
each person who controls MediaOne Group within the meaning of either the Act
or the Exchange Act, in either case, against any and all losses, claims,
damages or liabilities, joint or several, to which they or any of them may
become subject under the Act, the Exchange Act or other Federal or state
statutory law or regulation, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise
out of or are based upon any untrue statement or alleged untrue statement of
a material fact contained in (i) the AirTouch Registration Statement as
originally filed or in any amendment thereof, or in any Preliminary Final
AirTouch Prospectus or the Final AirTouch Prospectus, or in any amendment
thereof or supplement thereto, or (ii) all other AirTouch Furnished
Information, or arise out of or are based upon the omission hereto, or arise
out of or are based upon the omission or alleged omission to state in the
documents referred to in clause (i) or (ii) above a material fact required to
be stated in the documents referred to in clause (i) or (ii) above or
necessary to make the statements therein not misleading, and agrees to
reimburse each such indemnified party, as incurred, for any legal or other
expenses reasonably incurred by them in connection with investigating or
defending any such loss, claim, damage, liability or action; PROVIDED,
HOWEVER, that AirTouch will not be liable under the indemnity agreement in
this paragraph (b) to the extent that any such loss, claim, damage or
liability arises out of or is based upon any such untrue statement or alleged
untrue statement or omission or alleged omission made in the documents
referred to in clause (i) above in reliance upon and in conformity with (A)
written information furnished to AirTouch by or on behalf of any Underwriter
through the Representatives specifically for inclusion therein or (B)
MediaOne Group Furnished Information; and PROVIDED,
26
FURTHER that AirTouch shall not be liable to any Underwriter under the
indemnity agreement in this paragraph (b) with respect to the Preliminary
Final AirTouch Prospectus or Final MediaOne Group Prospectus to the extent
that any such loss, claim, damage or liability of such Underwriter results
from the fact that such Underwriter sold PIES to a person as to whom it shall
be established that there was not sent or given, at or prior to the written
confirmation of such sale, a copy of the Final MediaOne Group Prospectus
(including the Final AirTouch Prospectus, but excluding, in either case,
documents incorporated by reference)) or of the Final MediaOne Group
Prospectus (including the Final AirTouch Prospectus as then amended or
supplemented (excluding, in either case, documents incorporated by
reference)), as the case may be, in any case where such delivery is required
by the Act and, if the correction were made in the Final AirTouch Prospectus
(or amendment or supplement thereto), AirTouch has previously furnished
copies of the Final AirTouch Prospectus (excluding documents incorporated by
reference) or the Final AirTouch Prospectus as then amended or supplemented
(excluding documents incorporated by reference) in sufficient quantity to
such Underwriter and the loss, claim, damage or liability of such Underwriter
results from an untrue statement or omission of a material fact contained in
the Preliminary Final AirTouch Prospectus and corrected in the Final AirTouch
Prospectus (excluding documents incorporated by reference) or in the Final
AirTouch Prospectus as then amended or supplemented (excluding documents
incorporated by reference). This indemnity agreement will be in addition to
any liability which AirTouch may otherwise have.
(c) Each Underwriter severally agrees to indemnify and hold harmless
MediaOne Group and AirTouch, each of their respective directors, each of their
respective officers who signs the MediaOne Group Registration Statement, and
each person who controls MediaOne Group or AirTouch within the meaning of either
the Act or the Exchange Act, to the same extent as the foregoing indemnity in
paragraph (a) from MediaOne Group to each Underwriter and AirTouch, but only
with reference to written information furnished to MediaOne Group by or on
behalf of such Underwriter through the Representatives specifically for
inclusion in the documents referred to in the foregoing indemnity. This
indemnity agreement will be in addition to any liability which any Underwriter
may otherwise have. MediaOne Group and AirTouch acknowledge that the statements
set forth in the last paragraph of the cover page, in the last paragraph of the
inside cover page and under the heading "Plan of Distribution" in any
Preliminary Final MediaOne Group Prospectus or the Final MediaOne Group
Prospectus constitute the only information furnished in writing by or on behalf
of the several Underwriters as of the date hereof for inclusion in the documents
referred to in the foregoing indemnity, and you, as the Representative, confirm
that such statements are correct.
(d) Each Underwriter severally agrees to indemnify and hold harmless
AirTouch and MediaOne Group, each of their respective directors, each of their
respective officers who signs the AirTouch Registration Statement and each
person who controls AirTouch or MediaOne Group within the meaning of either the
Act or the Exchange Act, to the same extent as the foregoing indemnity in
paragraph (b) from AirTouch to each Underwriter and MediaOne Group, but only
with reference to written information relating to such Underwriter furnished to
AirTouch or MediaOne Group by or on behalf of such Underwriter through the
Representatives specifically for inclusion in the documents referred to in
clause (i) of the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may
27
otherwise have. AirTouch and MediaOne Group acknowledge that the statements
set forth in the first paragraph of the inside cover page and under the
heading "Plan of Distribution" in any Preliminary Final AirTouch Prospectus
or the Final AirTouch Prospectus constitute the only information furnished in
writing by or on behalf of the several Underwriters as of the date hereof for
inclusion in the documents referred to in the foregoing indemnity, and you,
as the Representatives, confirm that such statements are correct.
Promptly after receipt by an indemnified party under this Section 10
of notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under this
Section 10, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will not
relieve it from any liability under paragraphs (a), (b), (c) or (d) above except
to the extent it has been materially prejudiced by such omission and (ii) will
not, in any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraphs (a), (b), (c) or (d) above. In case any such action is brought
against any indemnified party, and it notifies the indemnifying party of the
commencement thereof, the indemnifying party will be entitled to participate
therein and, to the extent that it may wish, jointly with any other indemnifying
party similarly notified, to assume the defense thereof, with counsel
satisfactory to such indemnified party; PROVIDED, HOWEVER, that, any indemnified
party may employ separate counsel in any such action and participate in the
defense thereof, but the fees and expenses of such counsel shall be at the
expense of such indemnified party except as provided below. Upon receipt of
notice from the indemnifying party to the indemnified party of its election to
assume the defense thereof and approval by the indemnified party of counsel, the
indemnifying party will not be liable to such indemnified party (except as set
forth below) under this Section 10 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof unless
(i) the indemnified party shall have employed separate counsel in connection
with the assertion of legal defenses which the indemnified party shall have been
advised by such counsel may be available to it and/or other indemnified parties
which are different from or additional to those available to the indemnifying
party (it being understood, however, that the indemnifying party shall not be
liable for the expenses of more than one separate counsel, approved by the
representatives representing the indemnified parties who are parties to such
action), (ii) the indemnifying party shall not have employed satisfactory
counsel to the indemnified party to represent the indemnified party within a
reasonable time after notice of commencement of the action or (iii) the
indemnifying party has authorized the employment of counsel for the indemnified
party at the expense of the indemnifying party; and except that, if clause (i)
or (iii) is applicable, such liability shall be only in respect of the counsel
referred to in such clause (i) or (iii). An indemnifying party shall not be
liable for any amounts paid in settlement of any action or claim without its
written consent of the indemnifying party, which shall not be unreasonably
withheld. An indemnifying party will not, without the prior written consent of
each indemnified party, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of such indemnified party from all liability
arising out of such claim, action, suit or proceeding.
28
(f) In the event that the indemnity provided in paragraph (a), (b),
(c) or (d) of this Section 10 is for any reason held by a court to be
unavailable to an indemnified party for any reason, MediaOne Group, AirTouch and
the Underwriters agree to contribute to the aggregate losses, claims, damages
and liabilities (including legal or other expenses reasonably incurred in
connection with investigating or defending same) (collectively "Losses") to
which MediaOne Group, AirTouch and one or more of the Underwriters may be
subject (i) if the claim under such indemnity would have related to the
Underwriters as an indemnifying or indemnified party, (x) in such proportion as
shall be appropriate to reflect the relative benefits received by MediaOne Group
or AirTouch, as applicable, on the one hand and the Underwriters, on the other,
from the offering of the PIES or (y) if the allocation provided by clause (i)
(x) above is not permitted by applicable law or if the otherwise indemnified
party failed to give the notice required under Section 10(e), in such proportion
as is appropriate to reflect not only the relative benefits referred to in
clause (i) (x) above but also the relative fault of MediaOne Group or AirTouch,
as applicable, on the one hand and the Underwriters, on the other, with respect
to the statements or omissions which resulted in such Losses, as well as any
other relevant equitable considerations or (ii) if the claim under the indemnity
would have related to MediaOne Group or AirTouch as the respective indemnifying
and indemnified parties (or vice versa), in such proportion as shall be
appropriate to reflect the relative fault of MediaOne Group or AirTouch, as
applicable with respect to the statements or omissions which resulted in such
Losses as well as any other relevant equitable principles; PROVIDED, HOWEVER,
that in no case shall any Underwriter (except as may be provided in any
agreement among underwriters relating to the offering of the PIES) be
responsible for any amount in excess of the product of (i) the total Losses and
(ii) the percentage (expressed as a decimal) that the aggregate underwriting
discount applicable to the PIES purchased by such Underwriter hereunder bears to
the aggregate initial public offering price of such PIES. The relative benefits
received by MediaOne Group or AirTouch, as applicable, on the one hand and the
Underwriters on the other with respect to such offering shall be deemed to be
equal to the total net proceeds from the offering (before deducting expenses)
received by MediaOne Group, and the total underwriting discounts and
commissions, respectively, in each case as set forth on the cover page of the
Final MediaOne Group Prospectus and, as between AirTouch and the Underwriters,
AirTouch shall be deemed for this purpose to have received such total net
proceeds as received by MediaOne Group. Relative fault shall be determined by
reference to whether any alleged untrue statement or omission relates to
information provided by MediaOne Group or AirTouch, as applicable, on the one
hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such statement or omission. MediaOne Group, AirTouch and the Underwriters agree
that it would not be just and equitable if contribution were determined by PRO
RATA allocation or any other method of allocation which does not take account of
the equitable considerations referred to above. Notwithstanding the provisions
of this paragraph (g), 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. For
purposes of this Section 10, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls MediaOne Group or AirTouch
within the meaning of either the Act or the Exchange Act, each officer of
MediaOne Group or AirTouch who shall have signed the MediaOne Group
29
Registration Statement or the AirTouch Registration Statement, as the case
may be, and each director of MediaOne Group or AirTouch shall have the same
rights to contribution as MediaOne Group or AirTouch, subject in each case to
the applicable terms and conditions of this paragraph (g). Any party
entitled to contribution will, promptly after receipt of notice of
commencement of any action, suit or proceeding against another party or
parties under this paragraph (g), notify such party or parties from whom
contribution may be sought, but the omission to so notify in writing such
party or parties shall not relieve the party or parties from whom
contribution may be sought from any other obligation it or they may have
hereunder or otherwise under this paragraph (g).
11. DEFAULT BY AN UNDERWRITER. If any one or more Underwriters shall
fail to purchase and pay for any of the PIES agreed to be purchased by such
Underwriter or Underwriters hereunder and such failure to purchase shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay for (in the respective proportions which the principal amount of PIES
set forth opposite their names in Schedule I hereto bears to the aggregate
principal amount of PIES set forth opposite the names of all the remaining
Underwriters) the PIES which the defaulting Underwriter or Underwriters agreed
but failed to purchase; PROVIDED, HOWEVER, that in the event that the aggregate
principal amount of PIES which the defaulting Underwriter or Underwriters agreed
but failed to purchase shall exceed 10% of the aggregate amount of PIES set
forth in Schedule I hereto, the remaining Underwriters shall have the right to
purchase all, but shall not be under any obligation to purchase any, of the
PIES, and if such nondefaulting Underwriters do not purchase all the PIES, this
Agreement will terminate without liability to any nondefaulting Underwriter,
MediaOne Group or AirTouch. In the event of a default by any Underwriter as set
forth in this Section 11, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Representatives shall determine in order that
the required changes in the MediaOne Group or AirTouch Registration Statement
and the Final MediaOne Group or Final AirTouch Prospectus or in any other
documents or arrangements may be effected. Nothing contained in this Agreement
shall relieve any defaulting Underwriter of its liability, if any, to MediaOne
Group, AirTouch and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
12. TERMINATION. This Agreement shall be subject to termination in
the absolute discretion of the Representatives, by written notice given to
MediaOne Group and AirTouch prior to delivery of and payment for the PIES, if
prior to such time (i) trading in MediaOne Group's or AirTouch's common stock
shall have been suspended by the Commission or trading in securities generally
on the New York Stock Exchange shall have been suspended or limited or minimum
prices shall have been established on such Exchange, (ii) a banking moratorium
shall have been declared by either Federal or New York State authorities or
(iii) there shall have occurred any outbreak or escalation of hostilities,
declaration by the United States of a national emergency or war or other
calamity or crisis, the effect of which on financial markets of the United
States is such as to make it, in the judgment of the Representatives,
impracticable or inadvisable to proceed with the offering or delivery of the
PIES as contemplated by the Final MediaOne Group Prospectus (exclusive of any
supplement thereto).
30
13. REPRESENTATIONS AND INDEMNITIES TO SURVIVE. The respective
agreements, representations, warranties, indemnities and other statements of
MediaOne Group and AirTouch or their respective officers and of the Underwriters
set forth in or made pursuant to this Agreement will remain in full force and
effect, regardless of any investigation made by or on behalf of any Underwriter,
MediaOne Group or AirTouch or any of the officers, directors or controlling
persons referred to in Section 10 hereof, and will survive delivery of and
payment for the PIES. The provisions of Sections 9 and 10 hereof shall survive
the termination or cancellation of this Agreement.
14. NOTICES. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Representatives, will be mailed,
delivered or telegraphed and confirmed to it at Three World Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000; if sent to MediaOne Group, will be mailed, delivered
or telegraphed and confirmed to it at 000 Xxxxxxxxx Xxxxx Xxxx, Xxxxxxxxx,
Xxxxxxxx 00000, attention of the Legal Department; or if sent to AirTouch, will
be mailed, delivered, telegraphed and confirmed to it at Xxx Xxxxxxxxxx Xxxxxx,
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, attention of the Legal Department.
15. SUCCESSORS. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the officers
and directors and controlling persons referred to in Section 10 hereof, and no
other person will have any right or obligation hereunder.
16. APPLICABLE LAW. THIS AGREEMENT WILL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among
MediaOne Group, AirTouch and the several Underwriters.
Very truly yours,
MediaOne Group, Inc.
By: ____________________________
Name:
Title:
AirTouch Communications, Inc.
By: ____________________________
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Xxxxxx Brothers Inc.
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
By: Xxxxxx Brothers Inc.
By:
Vice President
For themselves and the other
several Underwriters named in
Schedule I to the foregoing
Agreement.
32
SCHEDULE I
Amount of
Underwritten PIES
Underwriter to be Purchased
----------- -----------------
Xxxxxx Brothers Inc. 11,336,000
Xxxxxx Xxxxxxx & Co. Incorporated 5,720,000
Xxxxxxx, Sachs & Co. 5,720,000
BT Alex. Xxxxx 260,000
CIBC Xxxxxxxxxxx Corp. 260,000
X. X. Xxxxxxx & Sons, Inc. 260,000
Everen Securities, Inc. 260,000
PaineWebber Incorporated 260,000
Prudential Securities Incorporated 250,000
Advest, Inc. 104,000
Xxxxxx X. Xxxxx & Co. Incorporated 104,000
Xxxx Xxxxxxxx Xxxxxxx 104,000
A Division of Xxxx Xxxxxxxx Incorporated
X. X. Xxxxxxxx & Co. Incorporated 104,000
Xxxxxxxxxx & Co. Inc. 104,000
Xxxxxx X. Xxxxx & Co., L.P. 104,000
Xxxx Xxxxx Xxxx Xxxxxx, Incorporated 104,000
XxXxxxxx & Company Securities, Inc. 104,000
Xxxxx Xxxxxxx Inc. 104,000
Xxxxx XxxXxxxxx Incorporated 104,000
Xxxxxxx Xxxxx & Associates, Inc. 104,000
Xxxxxx Xxxxxxx & Co., Inc. 104,000
Xxxxxx, Xxxxxxxx & Company, Incorporated 104,000
Sutro & Co. Incorporated 104,000
Xxxxxx Xxxxxxx Incorporated 104,000
Wheat First Securities, Inc. 104,000
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Total 26,000,000
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----------
33
