Exhibit 1.1
AT&T Wireless SERVICES, INC.
$_____________
$________ __% Notes Due _______, 20__
$________ __% Notes Due _______, 20__
$________ __% Notes Due _______, 20__
UNDERWRITING AGREEMENT
April __, 2002
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Four World Financial Center
Xxx Xxxx, XX 00000
As Representatives of the Underwriters
Named in Schedule I hereof
Dear Sirs and Mesdames:
The undersigned, AT&T Wireless Services, Inc., a Delaware corporation
(the "Company"), hereby confirms its agreement with the several Underwriters
named in Schedule I hereof, as follows:
1. Underwriters and Representatives. The term "Underwriters" as used
herein shall mean the firms and corporations named in Schedule I hereof, and the
term "Underwriter" shall mean any one of such firms or corporations. The terms
"Underwriters," "persons," "firms" and "corporations" as used herein shall
include the singular of such terms as well as the plural. The term
"Representatives" shall mean X.X. Xxxxxx Securities Inc., Xxxxxx Brothers Inc.
and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, who by signing this
Agreement represent that they have been authorized by each Underwriter to
execute this Agreement on behalf of such Underwriter and to act for such
Underwriter in the manner herein provided. All obligations of the Underwriters
hereunder are several and not joint.
2. Description of Notes. The Company proposes to issue $_____ principal
amount of its _____% Notes due _____, 20__ (the "20__ Notes"), $_____ principal
amount of its _____% Notes due _____, 20__ (the "20__ Notes") and $_____
principal amount of its _____% Notes due _____, 20__ (the "20__ Notes" and
collectively with the 20__ Notes and the 20__ Notes, the "Notes") under an
Indenture dated as of _____, 2002, (such Indenture including the provisions
deemed a part thereof, or superseding provisions thereof, pursuant to the Trust
Indenture Reform Act of 1990 (P.L. 101-550), being hereinafter referred to as
the "Indenture") between the Company and The Bank of New York, as Trustee (the
"Trustee"). The Notes are more fully described in the Registration Statement
hereinafter mentioned.
3. Representations and Warranties of the Company. The Company
represents and warrants to the Underwriters that:
(a) The Company has filed with the Securities and Exchange
Commission (the "Commission") a registration statement No. 333-74884
including a prospectus relating to common stock, preferred stock,
preferred stock rights and debt securities of the Company, including
the Notes, which has become effective under the Securities Act of 1933
(the "Act"), and has filed or will file with, or has delivered or will
deliver for filing to, the Commission a prospectus supplement
specifically relating to the Notes pursuant to Rule 424 under the Act.
The term "Registration Statement" means such Registration Statements as
amended to the date hereof together with such prospectus supplement.
The term "Basic Prospectus" means the prospectus included in the
Registration Statement. The term "Prospectus" means the Basic
Prospectus together with the prospectus supplement specifically
relating to the Notes, as filed with, or delivered for filing to, the
Commission pursuant to Rule 424. The term "preliminary prospectus"
means any preliminary prospectus supplement specifically relating to
the Notes together with the Basic Prospectus. As used herein,
Registration Statement, Basic Prospectus, Prospectus, and preliminary
prospectus shall include in each case the material, if any,
incorporated by reference therein.
(b) (i) Each part of the Registration Statement (including the
material incorporated by reference therein, if any) when such part
became effective, did not contain any untrue statement of a material
fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, (ii) each
preliminary prospectus relating to the Notes filed pursuant to Rule 424
under the Act, complied when so filed in all material respects with the
Act and the Trust Indenture Act of 1939 (the "Trust Indenture Act") and
the applicable rules and regulations of the Commission thereunder,
(iii) the Registration Statement and the Prospectus comply and, as
amended or supplemented, if applicable, will comply in all material
respects with the Act and the Trust Indenture Act and the applicable
rules and regulations of the Commission thereunder and (iv) the
Registration Statement and the Prospectus do not and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to
make the statements therein, in the light of the circumstances under
which they were made, not misleading; provided, however, that the
Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, any
preliminary prospectus or the Prospectus in reliance upon written
information furnished to the
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Company by or on behalf of any Underwriter specifically for inclusion
therein or as to any statements in or omissions from the Statement of
Eligibility and Qualification of the Trustee under the Indenture.
(c) Each document or portion thereof incorporated by reference
in the Prospectus complied when filed with the Commission in all
material respects with the provisions of the Act or the Securities
Exchange Act of 1934 (the "EXCHANGE ACT"), as applicable, together with
the applicable instructions, rules and regulations of the Commission
thereunder, and each document, if any, hereafter filed under the
Exchange Act and incorporated by reference in the prospectus supplement
specifically relating to the Notes, filed with, or delivered for filing
to, the Commission pursuant to Rule 424 will comply when so filed in
all material respects with the requirements of such Exchange Act and
such applicable instructions, rules and regulations.
(d) The accountants who have certified or shall certify the
financial statements filed and to be filed with the Commission as parts
of the Registration Statement and the Prospectus are public or
certified accountants, independent with respect to the Company, as
required by the Act and the Exchange Act and the rules and regulations
of the Commission thereunder.
(e) Neither the issuance or sale of the Notes nor the
consummation of any other of the transactions herein contemplated nor
the fulfillment of the terms hereof will result in a breach of any of
the terms and provisions of, or constitute a default under, any
indenture, mortgage, deed of trust or other agreement or instrument to
which the Company is a party or by which it is bound, or the Company's
certificate of incorporation or by-laws, or, to the best of its
knowledge, any order, rule or regulation applicable to the Company of
any court, federal or state regulatory body, administrative agency or
other governmental body having jurisdiction over the Company or its
properties, and, except as may be required under applicable state or
foreign securities laws in connection with the purchase and
distribution of the Notes by the Underwriters, no consent, approval,
authorization or order of, or filing or registration with, any such
court or governmental agency or body is required for the execution and
delivery by the Company of, compliance by the Company with the
provisions of or consummation of the transactions contemplated by, this
Agreement.
(f) The financial statements, together with related schedules
and notes, included in or incorporated by reference in the Registration
Statement and the Prospectus (and any amendment or supplement thereto),
present fairly in all material respects the combined financial
position, results of operations and changes in financial position of
the Company as discussed in the footnotes to the financial statements
on the basis stated in the Registration Statement and in the Prospectus
at the respective dates or for the respective periods to which they
apply; such statements and related schedules and notes have been
prepared in accordance with generally accepted accounting principles
consistently applied throughout the periods involved, except as
disclosed therein; and the other financial statistical information and
data set forth in the Registration Statement and the Prospectus (and
any amendment or supplement thereto) is, in all material respects,
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accurately presented and prepared on a basis consistent with such
financial statements and derived from the books and records of the
Company.
4. Each Underwriter, on behalf of itself and each of its affiliates
that participates in the initial distribution of the Notes, severally and not
jointly represents to and agrees with the Company that it and each such
affiliate:
(a) (i) has not offered or sold and, prior to the expiry of
the period of six months from the time of closing, will not offer or
sell any Notes to persons in the United Kingdom except to persons whose
ordinary activities involve them in acquiring, holding, managing or
disposing of investments (as principal or agent) for the purposes of
their businesses or otherwise in circumstances which have not resulted
and will not result in an offer to the public in the United Kingdom
within the meaning of the Public Offers of Securities Regulations 1995,
(ii) has only communicated and caused to be communicated and will only
communicate or cause to be communicated any invitation or inducement to
engage an investment activity (within the meaning of Section 21 of the
Financial Services and Markets Xxx 0000 ("FSMA") received by it in
connection with the issue or sale of any Notes in circumstances in
which Section 21(1) of the FSMA does not apply to it; and (iii) has
complied and will comply with all applicable provisions of the FSMA
with respect to anything done by it in relation to the Notes in, from,
or otherwise involving the United Kingdom;
(b) has not offered or sold, and will not offer or sell,
directly or indirectly, any of the Notes in or to residents of Japan or
to any persons for reoffering or resale, directly or indirectly in
Japan or to any resident of Japan, except pursuant to an exemption from
the registration requirements of the Securities and Exchange Law
available thereunder and in compliance with the other relevant laws and
regulations of Japan; and
(c) has not offered, sold or delivered and it and they will
not offer, sell or deliver, directly or indirectly, any of the Notes or
distribute any preliminary prospectus or the Prospectus or any other
offering material relating to the Notes, in or from any jurisdiction
except under circumstances that will, to the best of its or their
knowledge and belief, result in compliance with the applicable laws and
regulations thereof and which will not impose any obligations on the
Company except as contained in this Agreement.
5. Purchase and Sale of Notes. On the basis of the representations and
warranties and on the terms and subject to the conditions herein set forth, each
of the Underwriters agrees to purchase from the Company, severally and not
jointly, and on the terms and conditions herein set forth the Company agrees to
sell to each of the Underwriters, severally and not jointly, the principal
amount of the 20__ Notes set forth opposite its name in Schedule I hereof at
_____% of the principal amount thereof, the 20__ Notes set forth opposite its
name in Schedule I hereof at _____% of the principal amount thereof and the 20__
Notes set forth opposite its name in Schedule I hereof at _____% of the
principal amount thereof, together with accrued interest thereon from
__________, 2002, to the date of payment and delivery.
The terms of the public offering of the Notes are as set forth in the
Prospectus.
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6. Closing. Delivery of, and payment of the purchase price for, the
Notes which the Underwriters severally agree to purchase shall be made at the
office of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, at
9:00 a.m., New York City time, on February __, 2002 or at such other place or
time on the same or such other day as shall be agreed upon by the Company and
the Representatives. The time and date for such payment and delivery are herein
referred to as the "time of closing." At the time of closing, the Company will
deliver the Notes, registered in such names and in such authorized denominations
as the Representatives shall have specified not less than two business days
prior to the time of closing, against payment therefor as provided in section 7
hereof, through the facilities of The Depository Trust Company to the
Representatives for the respective accounts of the Underwriters.
The Company agrees to make the Notes available to the Representatives
for examination at a place to be mutually agreed upon, not later than 2:00 p.m.
on the business day next preceding the time of closing.
If, for any reason (other than termination of this Agreement in
accordance with the provisions of section 9 or 10 hereof), one or more of the
Underwriters shall fail or refuse to pay for the Notes of a series it has or
they have agreed to purchase (any such Underwriter being hereinafter referred to
as a "defaulting Underwriter"), and the aggregate principal amount of the Notes
of such series which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
principal amount of the Notes of such series, the remaining Underwriters shall
be obligated severally in the proportion which the amounts of Notes of such
series set forth opposite their names in Schedule I of this Agreement bear to
the aggregate principal amount of Notes of such series set forth opposite the
names of all such non-defaulting Underwriters (or in such other proportion as
the Representatives shall specify) to purchase the Notes of such series which
the defaulting Underwriter or Underwriters agreed but failed or refused to
purchase; provided that in no event shall the principal amount of Notes of any
series that any Underwriter is obligated to purchase be increased pursuant to
the provisions of this paragraph by more than one-ninth of the principal amount
of Notes of such series set forth opposite its name in Schedule I without the
written consent of such Underwriter. In the event that any defaulting
Underwriter or Underwriters shall fail or refuse to purchase Notes of any series
the aggregate principal amount of which is more than one-tenth of the aggregate
principal amount of the Notes of such series, and if arrangements satisfactory
to the Representatives and the Company for the purchase of all such Notes of
such series are not made within two business days after such default, this
Agreement will terminate with respect to the Notes of such series without
liability on the part of any of the non-defaulting Underwriters or of the
Company. In the event that the non-defaulting Underwriters agree to purchase, in
accordance with this paragraph, all the Notes of a series which the defaulting
Underwriter or Underwriters fail or refuse to purchase, the Representatives or
the Company shall have the right to postpone the time of closing for such series
of Notes, but in no event longer than five business days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus or
in any other documents or arrangements may be effected. Except to the extent
provided in subparagraph (g) of section 8 hereof, termination of this Agreement
pursuant to this section 6 shall be without any liability on the part of the
Company or any Underwriter other than a defaulting Underwriter which shall have
failed, otherwise than for some reason sufficient to justify under the terms
hereof the cancellation or termination of its obligations hereunder, to pay
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for the Notes which such Underwriter has agreed to purchase (any such failure or
refusal being hereinafter referred to as a "default").
Unless this Agreement is terminated in accordance with any of its
provisions, a default by any of the Underwriters shall not relieve any other
Underwriter from its obligation to purchase the Notes which it has agreed to
purchase.
7. Payment. At the time of closing, the Company will cause the Notes to
be delivered to the Representatives for the account of each Underwriter against
payment of the purchase price in Federal or other funds immediately available.
8. Covenants of the Company. The Company agrees as follows:
(a) The Company will not file any amendment or supplement to
the Registration Statement or the Prospectus of which the
Representatives shall not previously have been advised or which shall
be reasonably disapproved by Xxxxx Xxxx & Xxxxxxxx, which firm is
acting as counsel for the Underwriters, and will not file any document
pursuant to the Exchange Act which is deemed to be incorporated by
reference in the prospectus supplement specifically relating to the
Notes, filed with, or delivered for filing to, the Commission pursuant
to Rule 424 of which Xxxxx Xxxx & Xxxxxxxx shall not previously have
been advised.
(b) The Company will deliver to the Representatives a
reasonable number of copies of the Registration Statement as originally
filed and of all amendments thereto up to the time of closing. Promptly
upon the filing with the Commission of any amendment to the
Registration Statement or of any supplement to or amendment of the
Prospectus, the Company will deliver to the Representatives a
reasonable number of copies thereof. The terms "supplement" and
"amendment" or "amend", as used in this Agreement, shall include all
documents filed by the Company with the Commission subsequent to the
date of the Basic Prospectus, pursuant to the Exchange Act, which are
deemed to be incorporated by reference in the Prospectus.
(c) The Company will advise the Representatives promptly
(confirming such advice in writing) of any official request made by the
Commission for an amendment to the Registration Statement or Prospectus
or for additional information with respect thereto and of any official
notice of the institution of proceedings for, or of the entry of, a
stop order suspending the effectiveness of the Registration Statement.
The Company will use reasonable efforts to prevent the issuance of any
such stop order and, if such a stop order should be entered, the
Company will make every reasonable effort to obtain the lifting or
removal thereof as soon as possible.
(d) The Company will pay all expenses in connection with the
preparation and filing of the Registration Statement, the preparation
of the Indenture, the rating of the Notes, the issuance and delivery of
the Notes and the printing of the copies of any preliminary prospectus
and of the Prospectus to be furnished as provided in the first sentence
of subparagraph (h) below; and will pay any taxes on the issuance of
the Notes, but will not pay any transfer taxes. The Company will not be
required to pay any amount
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for any expenses of the Representatives or any of the Underwriters,
except the cost of mailing to the Underwriters copies of the
Registration Statement and all amendments thereto (including documents
incorporated by reference), the preliminary prospectuses and the
Prospectus, and except as provided by subparagraph (g) below. The
Company will not in any event be liable to any of the Underwriters for
damages on account of loss of anticipated profits.
(e) The Company will apply the proceeds from the sale of the
Notes as set forth under the heading "Use of Proceeds" appearing in the
Prospectus.
(f) So long as any of the Notes shall remain outstanding, the
Company will furnish to the Representatives, upon request and in
reasonable quantities for distribution to the Underwriters, copies of
such documents, reports and other information as may be required to be
furnished to Noteholders under the Indenture.
(g) The Company will use all reasonable efforts to qualify the
Notes, or to assist in the qualification of the Notes by or on behalf
of the Representatives, for offer and sale under the securities or Blue
Sky laws of such states of the United States as the Representatives may
designate, and will pay or reimburse the Representatives for counsel
fees, filing fees and out-of-pocket expenses in connection with such
qualification; provided that the Company shall not be required (i) to
qualify as a foreign corporation or to file a general consent to
service of process in any state or (ii) to pay, or to incur, or to
reimburse the Representatives for, any such expenses if no Notes are
delivered to and purchased by the Underwriters hereunder because of a
default by one or more of the Underwriters or the termination of this
Agreement pursuant to section 10 hereof.
(h) The Company will furnish to the Representatives or to the
respective Underwriters as many copies of the Prospectus as the
Representatives or to the respective Underwriters may reasonably
request for the purposes contemplated by the Act. If, during such
period after the first date of the public offering of the Notes as, in
the opinion of the counsel for the Underwriters, the Prospectus is
required by law to be delivered, any event shall occur which should be
set forth in a supplement to or an amendment of the Prospectus in order
to make the Prospectus not misleading, the Company will, upon the
occurrence of each such event, forthwith at its expense, prepare and
furnish to the Representatives or to the respective Underwriters as
many copies as the Representatives or to the respective Underwriters
may reasonably request for the purposes contemplated by the Act of a
supplement to or amendment of the Prospectus which will supplement or
amend the Prospectus so that, as supplemented or amended, it will not
at the date of such supplement or amendment contain any untrue
statement of a material fact or omit to state any material fact
necessary in order to make the statements therein not misleading. For
the purpose of this subparagraph (h), the Company will furnish such
reasonable information with respect to itself as the Representatives
may from time to time request, and the Representatives, at their own
expense, may visit any of the properties of the Company and may inspect
the books of account of the Company at any reasonable time.
Notwithstanding any of the other provisions of this subparagraph (h),
the Company shall not be under any obligation to furnish any supplement
to or amendment of the Prospectus on account of any change in, or to
include in any amended prospectus any change in, the
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information furnished to the Company by any Underwriter or Underwriters
or by the Representatives on its or their behalf for use in the
Prospectus, unless the Representatives have advised the Company in
writing of such change and have requested the Company at the expense of
such Underwriter or Underwriters to prepare a supplement to or
amendment of the Prospectus to reflect such change or to include such
change in an amended prospectus.
(i) The Company will cause to be made generally available to
its security holders as soon as practicable, but in any event not later
then ______, 2002, an earnings statement or statements which shall meet
the requirements of Section 11(a) of the Act and Rule 158 promulgated
thereunder.
(j) Until the business day following the time of closing, the
Company will not, without the consent of the Representatives, offer,
sell or contract to sell, or announce the offering of, any debt
securities of the Company substantially similar to the Notes covered by
the Registration Statement or any other registration statement filed
under the Act.
9. Conditions of the Obligations of the Underwriters. The obligations
of the Underwriters to purchase and pay for the Notes shall be subject to the
following additional conditions:
(a) At the time of closing, the Indenture shall be qualified
under the Trust Indenture Act, the Prospectus shall have been filed or
delivered for filing to the Commission not later than 5:00 p.m. on the
second business day following the date hereof, no stop order suspending
the effectiveness of the Registration Statement, as amended from time
to time, shall be in effect and no proceedings for that purpose shall
be pending before or threatened by the Commission, and the
Representatives shall have received a certificate dated the day of
closing and signed by a Vice President of the Company to the effect
that no such stop order is in effect and, to the knowledge of the
Company, no proceedings for such purpose are pending before, or
threatened by, the Commission.
(b) At or prior to the time of closing, the Representatives
shall have received from Xxxxxxx Coie LLP, counsel for the Company, an
opinion, satisfactory to Xxxxx Xxxx & Xxxxxxxx, to the effect that:
(i) the Company is a corporation in good standing,
duly organized and validly existing under the laws of the
State of Delaware; and is authorized by its Certificate of
Incorporation to transact the business in which it is engaged,
as set forth in the Prospectus;
(ii) the Company is duly qualified to transact the
business in which it is engaged, as set forth in the
Prospectus, in each State in the United States in which it
operates;
(iii) the Indenture has been duly executed and
delivered pursuant to due authorization by appropriate
corporate action, is a valid and binding agreement in
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accordance with its terms and has been duly qualified under
the Trust Indenture Act;
(iv) the Notes, when duly executed, registered and
authenticated pursuant to the Indenture and delivered to and
paid for by the Underwriters in accordance with the provisions
hereof, will be legal, valid and binding obligations of the
Company in accordance with their terms;
(v) this Agreement has been duly authorized, executed
and delivered on behalf of the Company and is valid and
binding on the Company, except as rights to indemnity and
contribution hereunder may be limited under applicable law;
(vi) all consents, approvals, authorizations or other
orders of U.S. regulatory authorities legally required for the
execution of the Indenture and the issuance and sale of the
Notes to the Underwriters pursuant to the terms of this
Agreement, have been obtained, except such as may be required
by the securities or Blue Sky laws of the various States in
connection with the offer and sale of the Notes; and
(vii) except as to financial statements and schedules
and other financial and statistical information contained
therein, which such opinion need not pass upon, (A) each
document or portion thereof incorporated by reference in the
Prospectus complied when filed with the Commission as to form
in all material respects with the requirements of the Act or
the Exchange Act, as applicable, together with the applicable
instructions, rules and regulations of the Commission
thereunder, (B) each part of the Registration Statement when
it became effective complied as to form in all material
respects with the requirements of the Act and the applicable
instructions, rules and regulations of the Commission
thereunder; (C) the Registration Statement and the Prospectus,
as amended or supplemented, if applicable, comply, and at the
date thereof complied, as to form in all material respects
with the requirements of the Act and the applicable
instructions, rules and regulations of the Commission
thereunder; and (D) advising that nothing came to such
counsel's attention which would lead such counsel to believe
(x) any part of the Registration Statement at the time it
became effective contained any untrue statement of a material
fact or omitted to state any material fact required to be
stated therein or necessary to make the statements therein not
misleading; and (y) as of the closing date, the Prospectus
contains any untrue statement of a material fact or omits to
state a material fact required to be stated therein or
necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading.
At Xxxxxxx Coie's option, the opinion specified in clause (ii) above
may be delivered by Xxxxxxx X. Xxxxxx, Senior Vice President and General Counsel
of the Company, in lieu of Xxxxxxx Coie LLP.
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(c) At or prior to the time of closing, the Representatives
shall have received from Xxxxx Xxxx & Xxxxxxxx an opinion to the effect
specified in clauses (iii) through (v) and (vii)(B), (C) and (D) of
subparagraph (b) above.
(d) At the date hereof and at or prior to the time of closing,
the Representatives shall have received an executed copy of a letter of
PricewaterhouseCoopers LLP, addressed to the Company and to the
Representatives, to the effect that: (i) they are independent public
accountants as required by the Act and the applicable published rules
and regulations of the Commission thereunder; (ii) the audited
financial statements contained or incorporated by reference in the
Registration Statement comply as to form in all material respects with
the applicable accounting requirements of the Act and the Exchange Act
and the applicable published rules and regulations of the Commission
thereunder; (iii) the unaudited pro forma financial statements
contained or incorporated by reference in the Registration Statement
comply as to form in all material respects with the applicable
accounting requirements of Rule 11-02 of Regulation S-X promulgated by
the Commission; and (iv) nothing has come to their attention as the
result of specified procedures not constituting an audit that caused
them to believe (A) that the unaudited financial statements, if any,
contained in or incorporated by reference as aforesaid, do not so
comply and are not fairly presented in conformity with generally
accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements contained as
aforesaid, (B) that there was any change in the capital stock or
increase in long term debt of the Company, or any decrease in net
assets, from the date of the latest balance sheet which is contained in
the Registration Statement, to a date not more than five days prior to
the date of such letter or (C) that there were any decreases, as
compared with the corresponding period in the preceding year, in total
revenues, operating income or net income from the date of the latest
figures for such items contained in the Registration Statement to the
date of the latest available financial statements of the Company;
provided that, with respect to any of the items specified in clause
(iv), such letter may contain an exception for matters which the
Registration Statement discloses have occurred or may occur; and
provided further, that the letter may vary from the requirements
specified in this subparagraph in such manner as the Representatives in
their sole discretion may determine to be immaterial or in such manner
as may be acceptable to the Representatives.
(e) Except as reflected in or contemplated by the Registration
Statement and the Prospectus, since the respective dates as of which
information is given in the Registration Statement and the Prospectus
there shall not have been, at the time of closing, any material adverse
change, financial or otherwise, in the condition of the Company from
that set forth in the Registration Statement and the Prospectus; there
shall not have occurred any downgrading, nor shall any notice have been
given of any intended or potential downgrading or of any review for a
possible change that does not indicate the direction of the possible
change, in the rating accorded the Company or any of the Company's
securities by Xxxxx'x Investors Service, Inc. or Standard & Poor's
Ratings Group, a division of McGraw Hill, Inc.; the representations and
warranties of the Company herein shall be true at the time of closing;
the Company shall not have failed, at or prior to the time of closing,
to have performed all agreements herein contained which should have
been performed by it at or prior to such time; and the Representatives
shall
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have received, at the time of closing, a certificate to the foregoing
effect dated the day of the closing and signed by a Vice President of
the Company.
In case any of the conditions specified above in this section 9 shall
not have been fulfilled, this Agreement may be terminated by the Representatives
by delivering written notice of termination to the Company. Any such termination
shall be without liability of any party to any other party except to the extent
provided in subparagraph (g) of section 8 hereof.
10. Termination of Agreement. This Agreement may be terminated by the
Representatives delivering written notice of termination to the Company at any
time prior to the time of closing, if after the signing of this Agreement (i)
trading in securities generally on the New York Stock Exchange shall have been
materially suspended or materially limited or minimum prices shall have been
established on such Exchange or there shall have been a material disruption in
settlement of such securities (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 or there shall have occurred a
national or international calamity or crisis, in either case which shall have
resulted in the declaration of a national emergency or a declaration of war
which, in the judgment of the Representatives, makes it impracticable or
inadvisable to proceed with the offering or delivery of the Notes on the terms
and in the manner contemplated in the Prospectus.
A termination of this Agreement pursuant to this section 10 shall be
without liability of any party to any other party.
11. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold each Underwriter, and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act, harmless from and against any and all losses, claims, damages, and
liabilities with respect to the Notes or any other securities of the Company
arising because the Registration Statement, any preliminary prospectus used in
connection with the offering of the Notes or the Prospectus (if used within the
period set forth in section 8(h) hereof and if used as amended or supplemented
by all amendments or supplements thereto which have been furnished to the
Representatives or such Underwriter) contained or is alleged to have contained
any untrue statement of a material fact or omitted or is alleged to have omitted
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading, except as to losses, claims, damages or
liabilities caused by any such untrue statement or omission or alleged untrue
statement or omission made in reliance upon information furnished to the Company
herein or otherwise furnished in writing by or on behalf of any Underwriter for
use in connection with any preliminary prospectus, the Registration Statement or
the Prospectus or any amendment or supplement thereof, or caused by any
statement in or omission from the Statement of Eligibility and Qualification of
the Trustee under the Indenture, provided that the indemnity agreement with
respect to any preliminary prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) on
account of any losses, claims, damages or liabilities arising from the sale of
Notes to any person if a copy of the Prospectus (as amended or supplemented by
all amendments or supplements thereto which have been furnished to the
Representatives or such Underwriter, but without documents incorporated by
reference or
-11-
exhibits) shall not have been sent, mailed or given to such person, if required
by the Act, at or prior to the written confirmation of the sale of such Notes to
such person.
(b) Each Underwriter agrees to indemnify and hold the Company,
its directors, its officers who sign the registration statement, and each person
who controls the Company within the meaning of Section 15 of the Act or Section
20 of the Exchange Act harmless from and against any and all losses, claims,
damages and liabilities arising because the Registration Statement or any
preliminary prospectus relating to the Notes, or the Prospectus or any amendment
or supplement thereto contained or is alleged to have contained any untrue
statement of a material fact or omitted or is alleged to have omitted to state a
material fact required to be stated therein or necessary to make the statements
therein not misleading, which untrue statement or omission or alleged untrue
statement or omission was made in any such preliminary prospectus or in the
Registration Statement or Prospectus or any amendment or supplement thereto in
reliance upon information furnished to the Company herein or otherwise furnished
in writing by or on behalf of such Underwriter for use in connection with any
preliminary prospectus, the Registration Statement or the Prospectus or any
amendment or supplement thereof.
(c) Each indemnified party under this section 11 agrees that
upon the commencement of any action against such indemnified party in respect of
which indemnity may be sought on account of any indemnity agreement contained
herein, it will promptly give written notice of the commencement thereof to the
party or parties against whom indemnity shall be sought, but the omission so to
notify such indemnifying party or parties of any such action shall not relieve
such indemnifying party or parties from any liability which it or they may have
to the indemnified party or parties otherwise than on account of such indemnity
agreement. In case such notice of any such action shall be so given, such
indemnifying party or parties shall be entitled to participate at its or their
own expense in the defense of such action, or, if it or they so elect, to assume
the defense of such action, and in the latter event such defense shall be
conducted by counsel chosen by such indemnifying party or parties and
satisfactory to the indemnified party or parties who shall be defendant or
defendants in such action, and such defendant or defendants shall bear the fees
and expenses of any additional counsel retained by them; but if the indemnifying
party or parties shall not elect to assume the defense of such action, such
indemnifying party or parties will reimburse such indemnified party or parties
for the reasonable fees and expenses of any counsel retained by them. In the
event that the parties to any such action (including impleaded parties) include
both the indemnifying party and the indemnified party and either (i) the
indemnifying party or parties and indemnified party or parties mutually agree or
(ii) representation of both the indemnifying party or parties and the
indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys for all such
indemnified parties, which firm shall be designated in writing by the
Representatives in the case
-12-
of an action in which one or more Underwriters or controlling persons are
indemnified parties and by the Company in the case of an action in which the
Company or any of its directors, officers or controlling persons are indemnified
parties. The indemnifying party or parties shall not be liable under this
Agreement with respect to any settlement made by any indemnified party or
parties without prior written consent by the indemnifying party or parties to
such settlement.
(d) If the indemnification provided for in this section 11 is
unavailable to an indemnified party in respect of any losses claims, damages, or
liabilities referred to therein, then each indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages or liabilities in such proportion as is
appropriate to reflect primarily the relative benefits received by the Company
on the one hand and the Underwriters on the other from the offering of the Notes
and also to reflect here appropriate the relative fault of the Company on the
one hand and the Underwriters on the other in connection with the statements or
omissions or alleged statements or omissions which resulted in such losses,
claims, damages, or liabilities, as well as any other relevant equitable
considerations. The relative fault of the Company and of the Underwriters shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company or by the
Underwriters and the parties' relative intent, knowledge, access to information
and opportunity to correct or prevent such statement or omission. The Company
and the Underwriters agree that it would not be just and equitable if
contribution pursuant to this subparagraph (d) were determined by pro rata
allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of the
equitable considerations referred to above in this subparagraph (d). The amount
paid or payable by an indemnified party as a result of the losses, claims,
damages or liabilities referred to in this subparagraph (d) shall be deemed to
include, subject to the limitations set forth above in this section 11, any
legal or other expenses reasonably incurred by such indemnified party in
connection with defending any such action or claim. Notwithstanding the
provisions of this subparagraph (d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at which
the Notes underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages which such Underwriter has been
required to pay, otherwise than pursuant to this subparagraph (d), by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Each Underwriter's obligation to
contribute pursuant to this subparagraph (d) is several in an amount which shall
bear the same proportion to the total principal amount of Notes set forth
opposite the name of such Underwriter in Schedule I (plus any increase in such
amount as may be required pursuant to section 6 hereof).
12. Miscellaneous. This Agreement shall inure to the benefit of the
Company, its directors, its officers who sign the registration statement, the
Underwriters and each controlling person referred to in section 11 hereof and
their respective successors. Nothing in this Agreement is intended or shall be
construed to give to any other person, firm or corporation any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision
-13-
herein contained. The term "successor" as used in this Agreement shall not
include any purchaser, as such purchaser, of any of the Notes from any of the
Underwriters.
13. Notices. All notices or other communications under this Agreement
shall be in writing and shall be deemed to be duly given as of the date
delivered, mailed or transmitted, and shall be effective upon receipt, if
delivered personally, mailed by registered or certified mail (postage prepaid,
return receipt requested) or delivered by a nationally recognized courier
service to the parties at the following address or sent by electronic
transmission to the telecopier numbers specified below:
If to the Underwriters, unless otherwise provided, to the
Representatives as follows:
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Transaction Execution Group
Telecopier: 000-000-0000
Xxxxxx Brothers Inc.
000 Xxxxxx Xxxxxx
Xxxxxx Xxxx, XX 00000
Attention: Fixed Income Syndicate
Telecopier: 000-000-0000
with a copy to:
General Counsel
Xxxxxx Brothers Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Four World Financial Center
Xxx Xxxx, XX 00000
Attention: Managing Director, Syndicate Desk
Telecopier:
If to the Company to: AT&T Wireless Services, Inc.
0000 000xx XX
Xxxxxxx, XX 00000
Attn: General Counsel
Telecopier: 000-000-0000
14. Governing Law. The validity and interpretation of this Agreement
shall be governed by the laws of the State of New York.
-14-
15. Survival Clause. Except with respect to any Underwriter who is in
default within the meaning of section 6 hereof, the indemnity and contribution
agreement contained in section 11 hereof and the representations and warranties
of the Company set forth in this Agreement or in any certificate furnished
pursuant hereto shall remain operative and in full force and effect regardless
of (i) any termination of this Agreement, (ii) any investigation made by or on
behalf of any Underwriter or any person controlling any Underwriter, or (iii)
acceptance of and payment for the Notes.
-15-
Please sign and return to us the enclosed duplicate of this letter,
whereupon this letter will become a binding agreement between the Company and
the several Underwriters, in accordance with its terms.
Very truly yours,
AT&T WIRELESS SERVICES, INC.
By:
----------------------------------
Name:
Title:
The foregoing Agreement is hereby
confirmed and accepted as of the date
first above written.
Acting severally on behalf of themselves and the
Underwriters named herein
X.X. XXXXXX SECURITIES INC.
By:
----------------------------------
Name:
Title:
XXXXXX BROTHERS INC.
By:
----------------------------------
Name:
Title:
XXXXXXX XXXXX, XXXXXX XXXXXX & XXXXX INCORPORATED
By:
----------------------------------
Name:
Title:
SCHEDULE I
PRINCIPAL AMOUNT PRINCIPAL AMOUNT PRINCIPAL AMOUNT
Name OF 20__ NOTES OF 20__ NOTES OF 20__ NOTES
---- ------------- ------------- -------------
X.X. Xxxxxx Securities Inc........................ $ $ $
Xxxxxx Brothers Inc............................... $ $ $
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated $ $ $
Total.................................... $ $ $
