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EXHIBIT 99.1
FORM OF EXCHANGE AGREEMENTS
EXCHANGE AGREEMENT (the "Agreement"), dated as of July 6, 2001,
between AT&T CORP., a New York corporation ("AT&T"), and [Xxxxxxx, Xxxxx & Co.,
a New York limited partnership] [Credit Suisse First Boston Corporation, a
Massachusetts corporation] ("Investment Bank"), and, solely with respect to
Sections 2, 7, 8, 9, 10 and 11 hereof, AT&T WIRELESS SERVICES, INC., a Delaware
corporation ("AWS").
WHEREAS, AT&T desires to exchange shares of common stock, $.01 par
value ("AWS Common Stock"), of AWS, with Investment Bank for certain debt
obligations of AT&T held by Investment Bank;
WHEREAS, Investment Bank desires to exchange such debt obligations
of AT&T for AWS Common Stock; and
WHEREAS, concurrently with the execution and delivery of this
Agreement, AT&T and [Credit Suisse First Boston Corporation ("CSFB")] [Xxxxxxx,
Sachs & Co. ("GS")] (the "Parallel Investment Bank"), and, solely with respect
to certain sections, AWS, are entering into an exchange agreement (the "Parallel
Exchange Agreement"), pursuant to which AT&T will exchange shares of AWS Common
Stock with Parallel Investment Bank for certain debt obligations of AT&T held by
Parallel Investment Bank, subject to the same terms and conditions as set forth
in this Agreement.
NOW THEREFORE, in consideration of the representations, warranties
and agreements contained in this Agreement, the parties agree as follows:
1. Exchange of Shares for Debt Obligations. (a) Subject to the terms
and conditions and in reliance upon the representations and warranties in this
Agreement, at the Closing (as defined below), (i) AT&T will transfer and deliver
to Investment Bank, and Investment Bank will accept, the number of shares of AWS
Common Stock set forth on Schedule I (the "Shares") and (ii) Investment Bank
will transfer to AT&T, and AT&T will accept, AT&T's debt obligations set forth
on Schedule II (the "Debt Obligations").
(a) The exchange of Shares for Debt Obligations (the "Closing")
shall occur at the office of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx
Xxxx, Xxx Xxxx (or at such other location or locations as may be agreed upon by
Investment Bank and AT&T), at 8:00 a.m., New York City time, on the third
Business Day subsequent to the date of this Agreement (the "Closing Date"). At
the Closing, Investment Bank shall deliver to AT&T, through the facilities of
The Depository Trust Company ("DTC"), its holdings of the Debt Obligations, and
AT&T shall deliver to Investment Bank the Shares (in such denominations and
registered in such names as Investment Bank may request not later than the
second Business Day preceding the Closing Date), such delivery of shares to be
made by book-entry transfer recorded in the direct registration system of AWS
maintained by AWS's transfer agent and registrar, EquiServe Trust Company, N.A.
(b) As used in this Agreement, the term "Business Day" shall mean
those days on which both the New York Stock Exchange and banking institutions
located in New York City are open for trading or banking, as the case may be, in
the ordinary course of business.
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2. Registration of Shares, etc. AWS has filed with the Securities
and Exchange Commission (the "Commission") a registration statement (No.
333-60472) on Form S-1, including a prospectus relating to Shares to be acquired
by Investment Bank under this Agreement and sold by Investment Bank as a
principal for its own account in a public offering (the "Public Offering").
(a) AWS agrees that if the Closing occurs but Investment Bank does
not sell all of the Shares it acquires pursuant to Section 1 in the Public
Offering, AWS shall enter into a registration rights agreement with Investment
Bank, or, if AWS would otherwise have a similar obligation to the Parallel
Investment Bank under the Parallel Exchange Agreement, with Investment Bank and
the Parallel Investment Bank (collectively, the "Investment Banks") which will
contain the following provisions:
(i) Upon written request by the Investment Bank(s), AWS shall use
its reasonable efforts to file as promptly as practicable (but in no event
more than 90 days after so required or requested pursuant to this Section
2) with the Commission, and thereafter shall use its reasonable efforts to
cause to be declared effective, a registration statement on an appropriate
form under the Securities Act of 1933, as amended (the "Securities Act"),
relating to the resale of the Shares and the shares acquired under the
Parallel Exchange Agreement, if any, (collectively, "Registrable Shares")
by the Investment Bank(s) (the "Registration Statement").
(ii) Subject to the last sentence of this clause (ii): (A) the
Investment Bank(s) shall have the right to submit a total of one written
request to file a Registration Statement during the period from 45 days
following the date of this Agreement until the one-year anniversary of the
date of this Agreement; and (B) the Investment Bank(s) shall have the
right to submit a written request to file a total of one additional
Registration Statement during the period from the one-year anniversary of
this Agreement until the earlier of (1) the date that is two years from
the Closing Date or (2) the first date as of which all the Registrable
Shares held by such Investment Bank have been sold. No request for
registration may be made by an Investment Bank unless the number of shares
sought to be included exceeds the Threshold Number (as defined below). The
foregoing notwithstanding, each Investment Bank's rights to request that a
Registration Statement be filed shall terminate on the earlier of (X) the
first date on which the Registrable Shares held by such Investment Bank
become eligible for resale without volume restrictions pursuant to Rule
144 under the Securities Act or (Y) the number of Registrable Shares held
by such Investment Bank at such time is less than the Threshold Number.
The "Threshold Number" is the lesser of (1) [_______]* and (2) the number
of shares that could be resold by such Investment Bank at the relevant
time in accordance with Rule 144 under the Securities Act.
(iii) The Investment Bank(s) agrees that AWS may refuse to file a
Registration Statement for a period not to exceed 60 days in any
three-month period or for three periods not to exceed an aggregate of 120
days in any twelve-month period (each, a "Suspension Period") for valid
business reasons, to be determined by AWS in its sole
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* Fill in the number of shares having a value of $250,000,000 at the
exchange price.
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reasonable judgment (not including avoidance of AWS's obligations
hereunder), including, without limitation, the acquisition or divestiture
of assets, public filings with the Commission, pending corporate
developments and similar events. AWS shall provide notice to the
Investment Bank(s) of a Suspension Period.
(iv) AWS shall use its reasonable efforts to cause (A) a
Registration Statement and any amendment thereto and any prospectus
forming part thereof and any supplement thereto to comply in all material
respects with the Securities Act and the rules and regulations of the
Commission thereunder, (B) a Registration Statement and any amendment
thereto (in either case, other than with respect to information included
therein in reliance upon or in conformity with written information
furnished to AWS by or on behalf of the Investment Bank(s) specifically
for use therein ("Investment Bank's Information")) not to contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein
not misleading and (C) any prospectus forming part of any Registration
Statement, and any supplement to such prospectus (in either case, other
than with respect to Investment Bank's Information), not to include an
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.
(v) In connection with a Registration Statement, AWS shall enter
into an indemnification agreement with the Investment Bank(s) in which AWS
will provide the same indemnification and contribution to the Investment
Bank(s) for the information contained in the Registration Statement as AWS
provided to the Underwriters (defined below) in the Underwriting Agreement
(defined below), and the Investment Bank(s) will provide the same
indemnification and contribution to AWS for Investment Bank's Information
as the Investment Bank(s) provided in the Underwriting Agreement.
3. Representations and Warranties. (a) AT&T hereby represents and
warrants to Investment Bank that:
(i) AT&T is a corporation duly organized, validly existing and in
good standing under the laws of the State of New York. AT&T has all
requisite corporate power and authority to enter into this Agreement and
to perform its obligations hereunder. This Agreement has been duly
executed and delivered by AT&T and constitutes a legal, valid and binding
obligation of AT&T, enforceable against AT&T in accordance with its terms.
(ii) No consent, approval, license, permit, order or authorization
of, or registration, declaration or filing with, any Federal, state, local
or foreign government or any court of competent jurisdiction,
administrative agency or commission or other governmental authority or
instrumentality, domestic or foreign (a "Governmental Entity") or
nongovernmental third party is required to be obtained or made by or with
respect to AT&T in connection with the execution, delivery and performance
of this Agreement except as have been previously obtained or made.
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(iii) Neither the exchange of the Shares nor the consummation of any
other of the transactions herein contemplated nor the fulfillment of the
terms hereof will result in a breach of any of the terms and provisions
of, or constitute a default under, any indenture, mortgage, deed of trust
or other agreement or instrument to which AT&T is a party or by which it
is bound, or AT&T's Certificate of Incorporation or By-Laws, or, to the
best of its knowledge, any order, rule or regulation applicable to AT&T of
any court, federal or state regulatory body, administrative agency or
other governmental body having jurisdiction over AT&T or its properties.
(iv) AT&T has good and valid title to the Shares, free and clear of
any liens, claims, equities, encumbrances, security interests, options,
charges or restrictions of any kind (collectively, "Liens"). Upon delivery
to Investment Bank at the Closing of the Shares to be exchanged, for
transfer to Investment Bank, and upon AT&T's exchange for the agreed upon
Debt Obligations, good and valid title to such Shares will pass to
Investment Bank, free and clear of any Liens, other than those arising
from acts of Investment Bank (other than those arising as a result of this
Agreement or the Underwriting Agreement or acts of Investment Bank
contemplated by the Registration Statement). Other than this Agreement,
the Shares are not subject to any voting trust agreement or other
contract, agreement, arrangement, commitment or understanding, including
any such agreement, arrangement, commitment or understanding restricting
or otherwise relating to the voting, dividend rights or disposition of the
Shares.
(v) When the Shares are transferred to Investment Bank at the
Closing in exchange for the Debt Obligations, (i) the Shares will have
been duly and validly authorized and issued, and fully paid and
non-assessable and (ii) the Shares will have been approved for listing on
the New York Stock Exchange, subject to official notice of issuance.
(vi) AT&T has made its own independent inquiry as to the legal, tax
and accounting aspects of the transactions contemplated by this Agreement
and any related transactions, and AT&T has not relied on Investment Bank,
Investment Bank's legal counsel or Investment Bank's accounting advisors
for legal, tax or accounting advice in connection with the transactions
contemplated by this Agreement or any related transactions.
(b) Investment Bank hereby represents and warrants to AT&T that:
(i) Investment Bank is a [limited partnership][corporation] duly
organized, validly existing and in good standing under the laws of the
State of [New York] [Massachusetts]. Investment Bank has all requisite
corporate power and authority to enter into this Agreement and to perform
its obligations hereunder. This Agreement has been duly executed and
delivered by Investment Bank and constitutes a legal, valid and binding
obligation of Investment Bank, enforceable against Investment Bank in
accordance with its terms.
(ii) No consent, approval, license, permit, order or authorization
of, or registration, declaration or filing with, any Governmental Entity
or nongovernmental
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third party is required to be obtained or made by or with respect to
Investment Bank in connection with the execution, delivery and performance
of this Agreement except as have been previously obtained or made.
(iii) Neither the exchange of the Debt Obligations nor the
consummation of any other of the transactions herein contemplated nor the
fulfillment of the terms hereof will result in a breach of any of the
terms and provisions of, or constitute a default under, any indenture,
mortgage, deed of trust or other agreement or instrument to which
Investment Bank is a party or by which it is bound, or Investment Bank's
charter or other organizational documents, or, to the best of its
knowledge, any order, rule or regulation applicable to Investment Bank of
any court, federal or state regulatory body, administrative agency or
other governmental body having jurisdiction over Investment Bank or its
properties.
(iv) Investment Bank has good and valid title to the Debt
Obligations, free and clear of any Liens. Investment Bank acquired the
Debt Obligations not less than 14 calendar days prior to the date hereof.
Upon delivery to AT&T at the Closing of the Debt Obligations to be
exchanged, for transfer to AT&T through the facilities of DTC, and upon
Investment Bank's exchange for the Shares, good and valid title to the
Debt Obligations will pass to AT&T, free and clear of any Liens, other
than those arising from acts of AT&T (other than those arising as a result
of this Agreement or the Underwriting Agreement or acts of AT&T
contemplated by the Registration Statement). To the best knowledge of
Investment Bank, other than this Agreement, the Debt Obligations are not
subject to any contract, agreement, arrangement, commitment or
understanding, including any such agreement, arrangement, commitment or
understanding restricting or otherwise relating to the disposition of the
Debt Obligations.
(v) Investment Bank has made its own independent inquiry as to the
legal, tax and accounting aspects of the transactions contemplated by this
Agreement and any related transactions, and Investment Bank has not relied
on AT&T, AT&T's legal counsel or AT&T's accounting advisors for legal, tax
or accounting advice in connection with the transactions contemplated by
this Agreement or any related transactions.
4. Conditions.
(a) The obligations of Investment Bank to exchange the Debt
Obligations for the Shares at the Closing shall be subject to the satisfaction
of the following conditions:
(i) AT&T shall have furnished to Investment Bank an opinion of
Wachtell, Lipton, Xxxxx & Xxxx, dated the Closing Date, to the effects set
forth in Exhibit 1 hereto.
(ii) No statute, rule, regulation, executive order, decree,
temporary restraining order, preliminary or permanent injunction or other
order enacted, entered, promulgated, enforced or issued by any
Governmental Entity or other legal restraint or prohibition shall be in
effect preventing the consummation of the transactions contemplated
hereunder.
(iii) The representations and warranties of AT&T in this Agreement
shall be true and correct in all material respects on and as of the
Closing Date, with the same
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effect as if made on the Closing Date, and AT&T shall have 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, and AT&T shall
have furnished to Investment Bank a certificate of AT&T, in form
reasonably satisfactory to the Investment Bank signed by a Vice President
or Treasurer of AT&T, dated the Closing Date, to the foregoing effects.
(iv) The private letter ruling AT&T received from the Internal
Revenue Service on May 29, 2001, shall continue to be valid as of the
Closing Date.
(v) All of the conditions to the obligations of the Underwriters to
purchase and pay for the Shares as set forth in Section 9 of the
Underwriting Agreement (the "Underwriting Agreement"), among Investment
Bank, as a selling stockholder, Parallel Investment Bank, as a selling
stockholder, the underwriters named in Schedule I thereto (the
"Underwriters") and AWS, dated the date hereof, shall have been satisfied.
In case any of such conditions shall not have been fulfilled, this Agreement may
be terminated by Investment Bank by delivering written notice of termination to
AT&T and AWS; provided, however, that (x) Parallel Investment Bank has also
delivered a written notice of termination to AT&T and AWS pursuant to Section
4(a) of the Parallel Exchange Agreement and (y) Investment Bank and Parallel
Investment Bank cite the failure(s) of the same condition(s) as the reason for
termination in their respective notices of termination. Any such termination
shall be without liability of any party to any other party except to the extent
provided in subparagraphs (d), (e) and (f) of Section 8 of the Underwriting
Agreement.
(b) The obligations of AT&T to exchange the Shares for the Debt
Obligations at the Closing shall be subject to the satisfaction of the following
conditions:
(i) Investment Bank shall have furnished to AT&T an opinion of Xxxxx
Xxxx & Xxxxxxxx, counsel for Investment Bank, dated the Closing Date, to
the effects set forth in Exhibit 2 hereto.
(ii) The representations and warranties of Investment Bank in this
Agreement shall be 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
Investment Bank shall have 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, and Investment Bank shall have furnished to AT&T a
certificate of Investment Bank, in form reasonably satisfactory to AT&T
signed by an officer of Investment Bank, dated the Closing Date, to the
foregoing effects.
(iii) All of the conditions to the obligations of the Selling
Stockholders (as defined in the Underwriting Agreement) to deliver Shares
and the shares acquired under the Parallel Exchange Agreement upon payment
therefor set forth in Section 10 of the Underwriting Agreement shall have
been satisfied.
In case any of such conditions shall not have been fulfilled, this
Agreement may be terminated by AT&T by delivering written notice of termination
to Investment Bank, the
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Parallel Investment Bank and AWS. Any such termination shall be without
liability of any party to any other party except to the extent provided in
subparagraphs (d), (e) and (f) of Section 8 of the Underwriting Agreement.
5. Termination of Agreement. This Agreement may be terminated by
Investment Bank by delivering written notice of termination to AT&T and AWS at
any time prior to the Closing, if after the signing of this Agreement (i)
trading in securities generally on the New York Stock Exchange shall have been
materially suspended or materially limited or minimum prices shall have been
established on such Exchange (which shall not include trading suspensions or
limitations resulting from the operation of General Rules 80A and 80B of such
Exchange, as amended or supplemented), (ii) a banking moratorium shall have been
declared by either federal or New York State authorities or (iii) the United
States shall have become engaged in hostilities which have resulted in the
declaration of a national emergency or a declaration of war which, in the
reasonable judgment of the Investment Bank, makes it impracticable or
inadvisable for the Underwriters to proceed with the offering or delivery of the
AWS Common Stock on the terms and in the manner contemplated in the Prospectus
(as defined in the Underwriting Agreement); provided, however, that (x) Parallel
Investment Bank has also delivered a written notice of termination to AT&T and
AWS pursuant to Section 5 of the Parallel Exchange Agreement and (y) Investment
Bank and Parallel Investment Bank cite the same reason(s) for termination in
their respective notices of termination.
A termination of this Agreement pursuant to this Section 5 shall be
without liability of any party to any other party.
6. Relationship of Parties. All acquisitions of Debt Obligations by
Investment Bank, all exchanges of Debt Obligations for Shares by Investment Bank
pursuant to this Agreement, all distributions by Investment Bank of the Shares
and all other acts or omissions of Investment Bank in connection with this
Agreement, are for Investment Bank's own account and not for the account of
AT&T. No principal-agent relationship is, or is intended to be created between
AT&T and Investment Bank, by any of the provisions of this Agreement.
7. Survival of Provisions. The respective agreements,
representations, warranties and other statements of AT&T or its officers and of
Investment Bank or its officers and agreements of AWS or its officers 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 Investment Bank, AT&T,
AWS or any of their respective officers and will survive the exchange of the
Debt Obligations for the Shares.
8. Notices. All notices or other communications under this Agreement
shall be in writing and shall be deemed to be duly given as of the date
delivered, mailed or transmitted, and shall be effective upon receipt, if
delivered personally, mailed by registered or certified mail (postage prepaid,
return receipt requested) or delivered by a nationally recognized courier
service to the parties at the following address or sent by electronic
transmission to the telecopier numbers specified below:
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If to Investment Bank, to:
If to AT&T, to: AT&T Corp.
000 Xxxxx Xxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Attn: Vice President-Law and
Corporate Secretary
Telecopier: (000) 000-0000
If to AWS, to: AT&T Wireless Services, Inc.
0000 000xx XX
Xxxxxxx, XX 00000
Attn: General Counsel
Telecopier: 000-000-0000
9. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and no other
person will have any right or obligation hereunder.
10. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York
applicable to agreements made and to be performed entirely within such State,
without regard to the conflicts of law principles of such State.
11. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
12. Disclosure Authorized. AT&T is authorized, subject to applicable
law, to disclose any and all aspects of the transactions contemplated by this
Agreement, without the Investment Bank imposing any limitation of any kind.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
duly executed as of the date first written above.
AT&T CORP.,
by
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Name:
Title:
[XXXXXXX, SACHS & CO.,]
[CREDIT SUISSE FIRST BOSTON CORPORATION,]
by
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[Name:
Title:]
As to Sections 2, 7, 8, 9, 10
and 11 only:
AT&T WIRELESS SERVICES, INC.,
by
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Name:
Title:
[Signature Page to Debt/Equity Exchange Agreement]
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SCHEDULE I
Shares to be delivered by AT&T at Closing
________ shares of AWS Common Stock
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SCHEDULE II
Debt Obligation(s) Face Amount
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Total
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