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Exhibit 10.3
Draft 9/30/95
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AMENDED AND RESTATED
INVESTMENT AGREEMENT
dated as of September 30, 1995
by and between
AIRTOUCH COMMUNICATIONS, INC.
a Delaware corporation
and
U S WEST, INC.,
a Colorado corporation
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS . . . . . . . . . . . . . . . . . . . . . . . . . . 1
1.1. Defined Terms . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE II REPRESENTATIONS AND WARRANTIES OF ATI . . . . . . . . . . . . . 3
2.1. Organization and Qualification . . . . . . . . . . . . . . . . . . . . 3
2.2. Authorization; Enforcement . . . . . . . . . . . . . . . . . . . . . . 4
2.3. No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.4. Rights Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
2.5. Delaware Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
ARTICLE III REPRESENTATIONS AND WARRANTIES OF USW . . . . . . . . . . . . . 4
3.1. Organization and Qualification . . . . . . . . . . . . . . . . . . . . 4
3.2. Authorization; Enforcement . . . . . . . . . . . . . . . . . . . . . . 4
3.3. No Conflicts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
3.4. Ownership of Securities of ATI . . . . . . . . . . . . . . . . . . . . 5
ARTICLE IV COVENANTS OF ATI . . . . . . . . . . . . . . . . . . . . . . . . 5
4.1. Modification of Terms . . . . . . . . . . . . . . . . . . . . . . . . . 5
4.2. Rights Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
4.3. Amendment to Rights Plan . . . . . . . . . . . . . . . . . . . . . . . 6
ARTICLE V COVENANTS OF USW . . . . . . . . . . . . . . . . . . . . . . . . 6
5.1. Standstill Provisions . . . . . . . . . . . . . . . . . . . . . . . . . 6
5.2. Voting Rights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
5.3. Transfers; Tender Offers; Suspension of Transfers . . . . . . . . . . . 10
5.4. Non-Competition . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
ARTICLE VI BOARD REPRESENTATION . . . . . . . . . . . . . . . . . . . . . . 13
6.1. USW's Right to Designate. . . . . . . . . . . . . . . . . . . . . . . . 13
6.2. Consultation; Expansion of Board and Appointment; Classification. . . . 13
6.3. Subsequent Nomination of Persons Designated by USW. . . . . . . . . . . 13
6.4. Replacement of Directors Designated by USW. . . . . . . . . . . . . . . 13
6.5. Termination of USW's Right to Designate; Resignation. . . . . . . . . . 14
6.6. Mandatory Recusal of USW's Board Designee . . . . . . . . . . . . . . . 14
ARTICLE VII REGISTRATION RIGHTS . . . . . . . . . . . . . . . . . . . . . . . 14
7.1. Demand Registration . . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.2. Company Registration . . . . . . . . . . . . . . . . . . . . . . . . . 14
7.3. Registration Procedures . . . . . . . . . . . . . . . . . . . . . . . . 16
7.4. Conditions to Offerings . . . . . . . . . . . . . . . . . . . . . . . . 18
7.5. Additional Conditions . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.6. Registration Expenses . . . . . . . . . . . . . . . . . . . . . . . . . 19
7.7. Indemnification; Contribution . . . . . . . . . . . . . . . . . . . . . 20
7.8. Rule 144 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.9. Certain Limitations . . . . . . . . . . . . . . . . . . . . . . . . . . 22
7.10. Reorganization, Reclassification, Merger, Consolidation or
Disposition of Assets . . . . . . . . . . . . . . . . . . . . . . . 23
ARTICLE VIII RIGHTS OF FIRST OFFER AND FIRST REFUSAL . . . . . . . . . . . . . 23
8.1. Notice of Intent to Transfer . . . . . . . . . . . . . . . . . . . . . 23
8.2. Right of First Offer . . . . . . . . . . . . . . . . . . . . . . . . . 23
8.3. Right of First Refusal . . . . . . . . . . . . . . . . . . . . . . . . 24
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ARTICLE IX TERM OF AGREEMENT . . . . . . . . . . . . . . . . . . . . . . . . 26
9.1. Term of Agreement . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
ARTICLE X MISCELLANEOUS . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.1. Legend; Removal of Legend . . . . . . . . . . . . . . . . . . . . . . 26
10.2. Severability . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
10.3. Specific Enforcement . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.4. Entire Agreement; Amendments . . . . . . . . . . . . . . . . . . . . . 27
10.5. Notices . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
10.6. Waivers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.7. Headings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.8. Successors and Assigns . . . . . . . . . . . . . . . . . . . . . . . . 28
10.9. No Third Party Beneficiaries . . . . . . . . . . . . . . . . . . . . . 28
10.10. Governing Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.11. Counterparts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
10.12. Arbitration . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
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AMENDED AND RESTATED INVESTMENT AGREEMENT
THIS AMENDED AND RESTATED INVESTMENT AGREEMENT (the "Agreement"), dated as
of September 30, 1995, by and between AIRTOUCH COMMUNICATIONS, INC., a Delaware
corporation ("ATI"), and U S WEST, INC., a Colorado corporation ("USW"),
W I T N E S S E T H:
WHEREAS, ATI and USW are parties to that certain Amended and Restated Joint
Venture Organization Agreement, dated as of the date hereof (the "Organization
Agreement"), providing for a series of transactions, including the establishment
of a partnership to be known as WMC Partners, L.P. ("WMC");
WHEREAS, ATI and USW are parties to that certain Amended and Restated
Agreement of Exchange and that certain Amended and Restated Trust Agreement of
Exchange, each dated as of the date hereof (the "Agreement of Exchange" and the
"Trust Agreement of Exchange," respectively);
WHEREAS, upon the terms and subject to the conditions set forth in the
Agreement of Exchange or the Trust Agreement of Exchange, under certain
circumstances either ATI or USW may elect to cause an exchange, by merger or
otherwise, of USW's partnership interests in WMC for capital stock of ATI (such
exchange being referred to herein as the "Exchange"); and
WHEREAS, in connection with the foregoing, ATI and USW desire to set forth
herein certain terms regarding their relationship both before and after the
Exchange;
NOW, THEREFORE, ATI and USW agree as follows:
ARTICLE I
DEFINITIONS
1.1. Defined Terms. (a) As used in this Agreement, the following terms shall
have the following meanings (unless indicated otherwise, all Article and Section
references are to Articles and Sections of this Agreement):
"Affiliate" shall have the meaning specified in Rule 12b-2 under the
Exchange Act, as such rule is currently in effect.
"Agreement of Exchange" shall have the meaning set forth in the second
recital of this Agreement.
"beneficial ownership" shall have the meaning specified in Rule 13d-3 under
the Exchange Act, as such rule is currently in effect.
"Change of Control" shall mean (i) any transaction or series of transactions
(as a result of a tender offer, merger, consolidation or otherwise) that results
in any Person, including a "group" (within the meaning of Section 13(d)(3) of
the Exchange Act) that includes such Person, acquiring beneficial ownership,
directly or indirectly, of 50% or more of the aggregate voting power of the
Voting Securities of ATI or USW, as the case may be; (ii) any transaction or
series of related transactions that results in the transfer, sale or other
disposition by ATI or USW, as the case may be, of assets (A) that represent more
than 80% of the total fair market value of its assets on a proportionate basis
immediately prior to such disposition, (B) that generated more than 80% of its
total operating revenues on a proportionate basis in the preceding fiscal year
and (C) that generated more than 80% of its total net income from operations on
a proportionate basis during the preceding fiscal year; provided, however, that
any such transac-
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tion or series of related transactions shall not be deemed to be a Change of
Control if a majority of the value of the consideration received in exchange for
the assets transferred, sold or otherwise disposed of consists of assets (or
interests in assets) of a like kind or nature; or (iii) when individuals who at
the beginning of any period of two consecutive calendar years constituted the
Board of Directors (together with any new directors whose election to the Board
of Directors or whose nomination for election was approved by a vote of at least
two-thirds of the members of the Board of Directors at the beginning of such
period or whose election or nomination for election was previously so approved)
cease for any reason to constitute a majority of the members of the Board of
Directors then in office.
"Common Stock" shall mean ATI's Common Stock, $.01 par value.
"Exchange" shall have the meaning set forth in the third recital of this
Agreement.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
or any similar federal statute, and the rules and regulations thereunder, all as
the same shall be in effect from time to time.
"Organization Agreement" shall have the meaning set forth in the first
recital of this Agreement.
"Person" shall mean any individual, partnership, corporation, trust,
unincorporated organization or other entity, or a government or agency or
political subdivision thereof.
"Related Agreements" shall have the meaning set forth in the Organization
Agreement.
"Rights Agreement" shall mean that certain Rights Agreement between ATI and
the Bank of New York, as Rights Agent, dated as of September 19, 1994, as it may
be amended from time to time, any successor agreement.
"SEC" shall mean the Securities and Exchange Commission or its successor.
"Securities Act" shall mean the Securities Act of 1933, as amended, or any
similar federal statute, and the rules and regulations thereunder, all as the
same shall be in effect from time to time.
"transfer" shall mean, with respect to any Voting Security, a sale,
exchange, transfer or other disposition, whether or not for value, of such
Voting Security or any interest therein, or of any direct or indirect right or
option to acquire beneficial ownership of the same.
"Trust Agreement of Exchange" shall have the meaning set forth in the second
recital of this Agreement.
"Voting Securities" shall mean any securities of ATI (unless the context
specifically contemplates another issuer) having the ordinary power to vote, in
the absence of contingencies, in the election of directors of ATI.
"Wholly Owned Subsidiary" shall mean, with respect to any Person, any entity
as to which 100% of the securities or other ownership interests having power to
elect the board of directors or other persons performing similar functions are
owned directly or indirectly by such Person.
"WMC" shall mean WMC Partners L.P., a Delaware limited partnership.
(b) Each of the following terms is defined in the Section set forth opposite
such term:
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Term Section
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Acquisition Proposal 5.1(b)
Future Investment Agreement 4.1(a)
Inspectors 7.3(f)
Notice of Intent 8.1
Notice of Election 8.2(b)
Other Investor 4.1(a)
Other Shares 7.2(c)
Percentage Limitation 5.1(a)
Permitted Offering 8.1
Records 7.3(f)
Registrable Shares 7.1
Registration Statement 7.1
ROFO Notice 8.2(a)
ROFR Notice 8.3(b)
Spin-off 5.3(d)
Spun-off Person 5.3(d)
Threshold Percentage 6.5
Unapproved Offer 5.3(c)
USW Response 5.1(b)
1% Purchaser 8.3(b)
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF ATI
ATI hereby makes the following representations and warranties to USW:
2.1. Organization and Qualification. ATI is a corporation duly organized and
existing in good standing under the laws of the State of Delaware and has the
corporate power to own its properties and to carry on its business as now being
conducted.
2.2. Authorization; Enforcement. (a) ATI has full legal right, power and
authority to enter into and perform this Agreement, (b) the execution and
delivery of this Agreement by ATI and the consummation by it of the transactions
contemplated hereby have been duly authorized by it, (c) this Agreement has been
duly authorized, executed and delivered by ATI and (d) this Agreement
constitutes a valid and binding obligation of ATI enforceable against ATI in
accordance with its terms, except that (i) such enforcement is subject to the
effect of any bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar law relating to, or affecting generally the enforcement of, creditors'
rights and remedies and (ii) the remedies of specific performance and injunctive
relief may be subject to general principles of equity.
2.3. No Conflicts. The execution, delivery and performance of this Agreement
and the consummation by ATI of the transactions contemplated hereby will not
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or other encumbrance on any property or asset of ATI pursuant
to any agreement, indenture or instrument to which ATI is a party, or by which
any property or asset of ATI is bound or affected, or result in a violation of
its Amended and Restated Articles of Incorporation or By-laws or any law, rule,
regulation, order, judgment or decree of any court or governmental agency
applicable to ATI or by which any property or asset of ATI is bound or affected.
Except for such filings as may be required by the Exchange Act or as
specifically contemplated hereby, no consent, authorization or order of, or
filing or registration with, any court or governmental agency is required for
the execution, delivery and performance of this Agreement.
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2.4. Rights Agreement. ATI has furnished to USW a true and correct copy of
the Rights Agreement, as amended.
2.5. Delaware Law. The Board of Directors of ATI has approved by resolution
USW as an "interested stockholder" for purposes of section 203 of the Delaware
General Corporation Law by reason of its acquiring of Voting Securities pursuant
to the Agreement of Exchange.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF USW
USW hereby makes the following representations and warranties to ATI:
3.1. Organization and Qualification. USW is a corporation duly organized and
existing in good standing under the laws of the State of Colorado and has the
corporate power to own its properties and to carry on its business as now being
conducted.
3.2. Authorization; Enforcement. (a) USW has full legal right, power and
authority to enter into and perform this Agreement, (b) the execution and
delivery of this Agreement by USW and the consummation by it of the transactions
contemplated hereby have been duly authorized by it, (c) this Agreement has been
duly authorized, executed and delivered by USW and (d) this Agreement
constitutes a valid and binding obligation of USW enforceable against USW in
accordance with its terms, except that (i) such enforcement is subject to the
effect of any bankruptcy, insolvency, reorganization, moratorium, liquidation or
similar law relating to, or affecting generally the enforcement of, creditors'
rights and remedies and (ii) the remedies of specific performance and injunctive
relief may be subject to general principles of equity.
3.3. No Conflicts. The execution, delivery and performance of this Agreement
and the consummation by USW of the transactions contemplated hereby will not
conflict with, or constitute a default (or an event which with notice or lapse
of time or both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or other encumbrance on any property or asset of USW pursuant
to any agreement, indenture or instrument to which USW is a party, or by which
any property or asset of USW is bound or affected, or result in a violation of
USW's charter documents or by-laws or any law, rule, regulation, order, judgment
or decree of any court or governmental agency applicable to USW or by which any
property or asset of USW is bound or affected. Except for such filings as may be
required by the Exchange Act or as specifically contemplated hereby, no consent,
authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance of
this Agreement.
3.4. Ownership of Securities of ATI. Other than such rights as may be
conferred on USW under this Agreement or the Related Agreements, USW and its
Affiliates do not beneficially own any securities of ATI.
ARTICLE IV
COVENANTS OF ATI
4.1. Modification of Terms. (a) ATI will provide to USW copies of each
agreement that ATI enters into with any Person (other than USW, an ATI employee
stock ownership plan, if any, or a Person who is restricted by law or regulation
from holding in excess of 25% of ATI's Voting Securities and other than
underwriting agreements) obligating ATI to transfer to such Person Voting
Securities (or securities convertible or exchangeable by such Person for Voting
Securities) representing 10% or more of the sum of (x) the then outstanding
Voting Securities and (y) Voting Securities to be
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transferred in connection with such agreement (or issuable upon the conversion
or exchange of securities to be so purchased) (each such agreement a "Future
Investment Agreement" and each such Person an "Other Investor").
(b) Within thirty (30) days after the execution by ATI of a Future
Investment Agreement, ATI shall choose one of the following and by written
notice inform USW:
(i) ATI shall offer to amend the terms of Section 5.1(a)(i) to
correspond to the percentage limitation on ownership of Voting Securities
imposed on the Other Investor in such Future Investment Agreement; or
(ii) ATI shall offer to amend the terms of Section 5.1(a) (other than
subparagraph (i) thereof) to provide for the corresponding terms (other than
as to Section 5.1(a)(i)) in their entirety (including the date certain
specified as the expiration date for the standstill provisions) as set forth
in such Future Investment Agreement;
provided that ATI shall choose, and offer to USW, the option set forth in clause
(ii) above if the percentage limitation on ownership of Voting Securities by
such Other Investor is less than 20%. If USW wishes to accept such offer, it
must do so by written notice to ATI within twenty days after receipt of ATI's
offer. Upon any such acceptance by USW, ATI and USW shall execute an agreement
confirming such amendment.
4.2. Rights Agreement. ATI will not amend or supplement the Rights Agreement
or adopt a new agreement providing for the issuance of rights or securities
comparable to the Rights Agreement, unless the Rights Agreement as so amended or
supplemented or such new agreement, as the case may be, provides to the same
effect as the amendments described in Section 4.3 and to the effect that USW and
its Affiliates shall not be deemed to be "Acquiring Persons" in connection with
their becoming "Beneficial Owners" of "Common Shares" pursuant to this Agreement
or the Agreement of Exchange. ATI further agrees that in the event of any
amendment of the terms of Section 5.1(a) pursuant to Section 4.1 above, it will
effect such further amendment of the Rights Agreement as may be reasonably
necessary so that USW and its Affiliates shall not be deemed to be Acquiring
Persons by reason of any such amendment of the terms of Section 5.1(a).
4.3. Amendment to Rights Plan. As soon as reasonably practicable after the
date hereof, ATI shall take all actions necessary to amend the Rights Agreement
such that the Trustee (as defined in the Trust Agreement of Exchange) shall not
be deemed to be an "Acquiring Person" in connection with its becoming a
"Beneficial Owner" of "Common Shares" (as such terms are defined in the Rights
Agreement) pursuant to the Trust Agreement of Exchange.
ARTICLE V
COVENANTS OF USW
5.1. Standstill Provisions. (a) USW covenants to and agrees with ATI that,
except as it may be specifically permitted by this Agreement or the Related
Agreements or unless it is specifically invited in writing to do so by ATI, USW
will not, and will cause each of its Affiliates not to, directly or indirectly:
(i) in any way acquire or agree to acquire beneficial ownership of any
securities or any direct or indirect rights or options to acquire beneficial
ownership of any securities of ATI, except (A) pursuant to the Exchange and
(B) thereafter, through open-market or privately-negotiated purchases from
third
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parties of Voting Securities, if the aggregate percentage (calculated by voting
power) of the Voting Securities beneficially owned by USW and its Affiliates
after giving effect to such acquisition would not exceed (I) the aggregate
percentage of total voting power of ATI's capital stock represented on the date
of the Exchange by the Common Stock issued to USW pursuant to such Exchange or
(II), if the aggregate percentage described in the preceding clause (I) was less
than 16%, then 16% (the applicable percentage pursuant to clause (I) or (II)
being known as the "Percentage Limitation"); provided that if, immediately
following any transfer of Voting Securities by USW or its Affiliates to any
person other than an Affiliate of USW, the percentage of outstanding Voting
Securities then beneficially owned by them is less than the Percentage
Limitation minus two percentage points, the Percentage Limitation shall be
reduced to the percentage of outstanding Voting Securities then beneficially
owned by them plus two percentage points; and provided further that in no event
shall USW and its Affiliates be deemed to have exceeded any Percentage
Limitation then in effect solely as a result of a reduction in the outstanding
Voting Securities, including through repurchases of outstanding Voting
Securities by ATI, which reduction has the effect of increasing the percentage
(calculated by voting power) of outstanding Voting Securities beneficially owned
by USW and its Affiliates beyond the Percentage Limitation (provided that any
subsequent increase in the Voting Securities beneficially owned by USW and its
Affiliates, without the prior approval of ATI, shall be deemed to be a violation
of the Percentage Limitation);
(ii) make any public announcement with respect to, or submit to ATI or
any of its directors, officers, representatives, employees, attorneys,
advisers, agents or Affiliates (whether publicly or otherwise) any proposal
for, the acquisition of Voting Securities not permitted by paragraph (i)
above which would result in USW's exceeding the Percentage Limitation or for
or with respect to any merger, consolidation or business combination
involving ATI or its Affiliates or for or with respect to any purchase of a
substantial portion of the assets of ATI or its Affiliates, whether or not
any parties other than USW and its Affiliates are involved and whether or
not such proposal might require the making of a public announcement by ATI;
(iii) make, or in any way participate in, any "solicitation" of
"proxies" to vote any Voting Securities or become a "participant" in any
"election contest" (as such terms are defined or used in Regulation 14A
under the Exchange Act, as such Regulation is currently in effect), provided
that USW shall not be deemed to be a "participant" by reason of the
membership of any of its designees on ATI's Board of Directors or solely by
reason of its exercise of the voting rights set forth in Section 5.2;
(iv) propose any matter for submission to a vote of stockholders of
ATI;
(v) form, join or in any way participate in a "group" (within the
meaning of Section 13(d)(3) of the Exchange Act) with respect to any Voting
Securities of ATI;
(vi) grant any proxy with respect to any Voting Securities to any
Person not approved by ATI;
(vii) deposit any Voting Securities in a voting trust or subject any
Voting Securities to any arrangement or agreement
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with respect to the voting of such Voting Securities or other agreement
having similar effect;
(viii) take any action which would be reasonably likely to require ATI
to make a public announcement regarding any of the matters specified in this
Section 5.1(a)(i)-(xii); or
(ix) enter into any negotiations, arrangements or understandings with
any third party with respect to any of the foregoing, or any discussions
designed to advise, assist or encourage any third party in connection with
any of the foregoing;
(x) disclose publicly any intention, plan or arrangement inconsistent
with the foregoing;
(xi) request ATI (or any of its officers, directors, representatives,
employees, attorneys, advisors, agents or Affiliates) to waive, amend or
modify any provisions of Section 5.1(a)(i)-(xii); or
(xii) otherwise act, alone or in concert with others, to seek to
control or influence the management, Board of Directors or policies of ATI.
Nothing in this Section 5.1(a) shall restrict the manner in which any
designee of USW on ATI's Board of Directors participates in deliberations or
discussions of the Board, votes on any matter submitted to the Board, or
otherwise acts in his capacity as a director of ATI.
(b) Notwithstanding any provision of this Section 5.1 to the contrary, in
the event that (i) ATI and any Person or "group" (within the meaning of Section
13(d)(3) of the Exchange Act) enter into an agreement pursuant to which (A) such
Person or group would acquire a majority (calculated by voting power) of the
then outstanding Voting Securities of ATI or the right to appoint a majority of
the directors of ATI, or (B) a majority (calculated by voting power) of the then
outstanding Voting Securities of ATI is to be acquired by any Person or group
(within the meaning of Section 13(d)(3) of the Exchange Act) in a merger,
consolidation, or other business combination (any such event being an
"Acquisition Proposal"), (ii) a bona fide tender or exchange offer by any Person
or group (within the meaning of Section 13(d)(3) of the Exchange Act) (other
than ATI or any wholly-owned Affiliate thereof) which would result, if
consummated in accordance with its terms, in the beneficial ownership by such
Person or group of in excess of 50% (calculated by voting power) of the then
outstanding Voting Securities is approved or recommended by the Board of
Directors of ATI, (iii) in connection with the matters discussed in clause (i)
or (ii), or a tender or exchange offer for greater than 40% of the outstanding
Voting Securities which the Board of Directors of ATI has not approved or
recommended, the Board of Directors of ATI has terminated or amended (or agreed
to terminate or amend) the Rights Agreement or has redeemed (or agreed to
redeem) the Rights issued thereunder, and such action has permitted or will have
permitted the consummation of such Acquisition Proposal or offer, or a final,
non-appealable court order has declared the Rights Agreement invalid or
otherwise required the redemption of the Rights issued thereunder or (iv) ATI
and any Person enter into an agreement providing for a transaction or series of
related transactions that results in the transfer, sale or other disposition by
ATI of assets (A) that represent more than 80% of the total fair market value of
its assets on a proportionate basis immediately prior to such disposition, (B)
that generated more than 80% of its total operating revenues on a proportionate
basis in the preceding fiscal year and (C) that generated more than 80% of its
total net income from operations on a proportionate basis during the preceding
fiscal year (excepting any such transaction or series of related transactions in
which a majority of the value of the consideration received in exchange for the
assets transferred,
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sold or otherwise disposed of consists of assets (or interests in assets) of a
like kind or nature), this Section 5.1 shall not prohibit USW (unless acting in
concert with such Person) from making either a competing Acquisition Proposal or
a tender or exchange offer pursuant to which USW or its Affiliates would acquire
at least the same percentage (calculated by voting power) of ATI's then
outstanding Voting Securities as would be acquired in such non-USW Acquisition
Proposal or such non-USW tender or exchange offer (a "USW Response"). USW agrees
that any USW Response (including amendments thereto) will provide for
consideration that is no less favorable to ATI's shareholders than that being
offered pursuant to such non-USW Acquisition Proposal or such non-USW tender or
exchange offer (taking into account the form of consideration and the number of
shares to be acquired pursuant to such USW Response). In the event that the
transactions contemplated by clauses (i), (ii), (iii) or (iv) shall have been
terminated or abandoned after the USW Response, USW shall have the ability,
subject to the requirements of the preceding sentence, to amend or modify its
response, and to consummate the transaction contemplated by the USW Response or
such amendment or modification, so long as USW shall not have terminated or
abandoned its initial response other than as a result of such amendment or
modification. In the event that the transactions contemplated by clauses (i),
(ii), (iii) or (iv) shall have been terminated or abandoned prior to the USW
Response, or, if not so terminated or abandoned, in the event thereafter that
such transactions and those contemplated by such USW Response shall have been
terminated or abandoned, all of the restrictions contained in this Section 5.1
shall again be applicable.
(c) For so long as USW and its Affiliates beneficially own 5% or more
(calculated by voting power) of the outstanding Voting Securities, neither USW
nor its Affiliates may (i) act in concert with any Other Investor with respect
to any of the activities set forth in this Section 5.1 or (ii) transfer any
Voting Securities of ATI to any Other Investor.
(d) Notwithstanding anything to the contrary herein, no exercise by USW and
its Affiliates of their rights under the Trust Agreement of Exchange shall be
deemed to violate this Section 5.1.
5.2. Voting Rights. (a) USW and its Affiliates shall vote all of the Voting
Securities held by them in favor of the individuals nominated by ATI for
election to the Board of Directors.
(b) USW and its Affiliates shall be free to vote the Voting Securities held
by them in their discretion with respect to any of the following matters that
may be submitted to a vote of the shareholders of ATI: (i) Acquisition
Proposals; (ii) a sale of all or substantially all of the assets of ATI; (iii)
dissolution of ATI; (iv) a recapitalization or restructuring of ATI resulting in
a fundamental change in its capital structure; (v) a transaction or other event
involving a fundamental change in the scope of ATI's business; and (vi)
amendments to ATI's articles or by-laws.
(c) On all matters other than those set forth in Sections 5.2(a) and (b)
above, USW and its Affiliates shall vote the Voting Securities held by them
either (i) as directed by ATI or (ii) in the same proportions as all other
shareholders of ATI, at the option of USW.
5.3. Transfers; Tender Offers; Suspension of Transfers. (a) During the
period ending on July 25, ▇▇▇▇, ▇▇▇ and its Affiliates will not, at any time,
directly or indirectly, transfer, or offer to transfer, any Voting Securities
beneficially owned by them, except as provided by Section 5.3(b). Thereafter,
USW and its Affiliates may transfer Voting Securities only (i) as provided in
Section 5.3(b), (c) or (d); (ii) in transactions in compliance with the volume
limitations and restrictions on manner of sale set forth in paragraphs (e) and
(f) of Rule 144 promulgated under the Securities Act (whether or not such
paragraphs by their terms would apply to such transactions), as such Rule exists
on the date hereof; (iii) in privately negotiated or other transactions, or
pursuant to the registration
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rights set forth in Article VII of this Agreement other than as described in the
following clause (iv); or (iv) pursuant to the registration rights set forth in
Article VII of this Agreement, in a firm commitment underwritten public offering
managed by a nationally recognized investment banking firm and satisfying the
conditions set forth in Section 7.4(a) hereof.
In connection with any transfer permitted under clauses (ii), (iii) and (iv)
of this Section 5.3(a), the following shall apply:
(w) the aggregate number of shares transferred by USW and its
Affiliates pursuant to clauses (ii), (iii) and (iv) shall not exceed, in any
twelve-month period, one-half of the aggregate number of Voting Securities
issued to USW pursuant to the Exchange (for purposes of this paragraph (w)
only, each share of Preferred Stock (as defined in the Agreement of
Exchange), if any, issued to USW shall be deemed to be the issuance of a
share of Common Stock, and the transfer of a share of Preferred Stock shall
be deemed to be the transfer of a share of Common Stock);
(x) USW and its Affiliates may not make any transfer pursuant to clause
(ii), (iii) or (iv) unless the transferee, together with its Affiliates and
any "group" (within the meaning of Section 13(d) of the Exchange Act) of
which such transferee or any Affiliate is a part, would not, after such
transfer, beneficially own Voting Securities representing in excess of 4.9%
of the then outstanding Voting Securities;
(y) no transfer of shares representing more than 2.5% of the total
number of Voting Securities then outstanding shall be made in any single
transaction or series of related transactions to any Person or group (within
the meaning of Section 13(d) of the Exchange Act); and
(z) no transfer of an amount of Voting Securities representing more
than 1% of the then outstanding Voting Securities shall be made to any
Person or group unless USW believes in good faith after due inquiry that
such Person or group would be eligible with respect to such Voting
Securities to file a Statement on Schedule 13G pursuant to Rule 13d-1(b)(1)
under the Exchange Act (without regard to the beneficial ownership threshold
set forth in such Rule), as such Rule is presently in effect.
(b) USW may transfer the Voting Securities beneficially owned by it to a
Wholly Owned Subsidiary of USW, provided that such Wholly Owned Subsidiary also
shall agree in writing to be bound by the terms of this Agreement. No such
transfer shall be deemed to relieve USW from, and USW shall be liable for the
performance by such transferee of, its obligations under this Agreement. In the
event of any such transfer, USW shall act as agent for any and all such Wholly
Owned Subsidiaries in connection with the giving of any and all notices under
this Agreement. The Voting Securities held by any Wholly Owned Subsidiary of USW
shall be transferred back to USW or another Wholly Owned Subsidiary of USW prior
to any transaction that, if consummated, would result in such Wholly Owned
Subsidiary ceasing to be such.
(c) In the event of (i) a tender or exchange offer for Voting Securities
commenced by ATI (or an Affiliate of ATI) or (ii) a tender or exchange offer for
Voting Securities commenced by a third party, (x) in connection with which, ATI
has terminated or amended (or agreed to terminate or amend) the Rights Agreement
or redeemed (or agreed to redeem) the Rights issued thereunder and such action
has permitted or will have permitted the consummation of such offer, or a final,
non-appealable court order has declared the Rights Agreement invalid or
otherwise required the redemption of the Rights issued thereunder or (y) which
ATI's Board of Directors has
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otherwise approved, USW and its Affiliates shall be permitted to tender or sell
the Voting Securities then owned by them in accordance with the terms of any
such offer without restriction hereunder.
In the event that a tender or exchange offer not described in the
immediately preceding paragraph is commenced by any Person or group (within the
meaning of Section 13(d)(3) of the Exchange Act) and such offer would result, if
consummated in accordance with its terms, in the beneficial ownership by such
Person or group of in excess of 50% (calculated by voting power) of the Voting
Securities then outstanding (an "Unapproved Offer"), USW and its Affiliates
shall have the right to tender or sell the Voting Securities then owned by them
to the offerer pursuant to such offer if the Board of Directors of USW, upon the
advice of legal counsel and financial advisers, reasonably believes in good
faith, taking into account the conditions of the offer, that such tender offer
will result in shares being purchased (without any extension of the then
scheduled expiration date and without giving effect to shares that might be
tendered by USW and its Affiliates); provided, however, that prior to tendering
or offering for exchange any such Voting Securities in such Unapproved Offer,
USW first shall have offered to ATI not later than seventy-two hours prior to
the expiration of such Unapproved Offer the right to purchase for the same
consideration (or cash equivalent) that number of such Voting Securities which,
if tendered or offered for exchange, would be purchased in such Unapproved
Offer, which purchase shall be closed not later than the second business day
following the consummation of such Unapproved Offer; and provided further, that
USW may tender or offer for exchange such Voting Securities in such Unapproved
Offer in the event that ATI shall have failed within the later of forty-eight
hours after receipt of such notice or twenty-four hours prior to the expiration
of such Unapproved Offer to provide USW with reasonable assurance that it shall
be ready, willing and able to consummate such purchase.
(d) USW may spin off to its shareholders a Wholly Owned Subsidiary of USW
(the "Spun-off Person") the assets of which include all, but not less than all,
of the Voting Securities beneficially owned by USW and its Affiliates (the
"Spin-off") in a transaction qualifying under Section 355 of the Internal
Revenue Code of 1986, as amended, if all of the following conditions are
satisfied:
(i) No more than 240 days nor less than 180 days prior to the Spin-off,
USW shall advise ATI of its plan to effect the Spin-off and thereafter shall
promptly provide ATI with such information regarding the Spun-off Person as
ATI shall reasonably request; provided that such information shall promptly
be updated if the financial condition of the Spun-off Person changes in any
material respect after delivery of such information;
(ii) Prior to the Spin-off, neither USW, any Affiliate of USW nor the
Spun-off Person shall have entered into any agreement, or formulated any
plan or intention, with respect to any merger or other business combination
transaction involving the Spun-off Person and a party other than ATI or an
Affiliate of ATI;
(iii) The Fair Market Value of the Voting Securities to be beneficially
owned by the Spun-off Person shall not equal or exceed 50% of the Fair
Market Value of the Spun-off Person; and
(iv) The Spun-off Person shall have executed an investment agreement
with ATI substantially in the form of this Agreement; provided, however,
that any such agreement shall terminate on the tenth anniversary of the date
of this Agreement.
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(e) All transfers of Voting Securities held by USW and its Affiliates other
than transfers permitted by Sections 5.3(a)(ii), (b), (c) or (d) shall be
subject to Article VIII of this Agreement.
(f) Any transfer of Voting Securities in violation of this Section 5.3 may
be suspended on the books of ATI.
5.4. Non-Competition. For a period of one year after the later of the date
on which USW (i) ceases to be entitled (or irrevocably waives its right) to
nominate a director to ATI's Board of Directors or (ii) ceases to have a
designee on ATI's Board of Directors, USW shall be subject to Section 7.4 of the
Agreement of Limited Partnership of WMC Partners, L.P. (as in effect on the date
hereof) to the same extent as any Partner in WMC and as if the provisions
thereof were set forth herein; provided, however, that any obligations imposed
by this Section 5.4 shall terminate upon a Change of Control of ATI.
ARTICLE VI
BOARD REPRESENTATION
6.1. USW's Right to Designate. Upon the consummation of the Exchange, USW
shall be entitled to designate such number of persons for election to ATI's
Board of Directors equal to the nearest whole number less than the product
obtained by multiplying (a) the percentage of the total voting power of the then
outstanding Voting Securities represented by the Voting Securities then
beneficially owned by USW and its Affiliates and (b) the number of persons,
including any vacancies, on ATI's Board of Directors; provided, however, that
for so long as USW and its Affiliates beneficially own 10% or more of the total
voting power of ATI's outstanding Voting Securities and its rights under this
Agreement have not otherwise terminated, USW shall be entitled to designate at
least one such person.
6.2. Consultation; Expansion of Board and Appointment; Classification. The
designation by USW of any person pursuant to Section 6.1 shall be made after
consultation with ATI and shall be a person reasonably satisfactory to ATI.
Following such designation, ATI shall take such steps as are necessary to
increase the size of the Board of Directors to accommodate the person so
designated, and the Directors then in office will appoint such person to fill
the resulting vacancy and determine the class in which such person shall be
placed.
6.3. Subsequent Nomination of Persons Designated by USW. The Nominating
Committee of the Board of Directors shall recommend to the Board of Directors
that any person designated by USW and appointed in accordance with the
provisions of this Article VI be recommended by ATI to its shareholders for
election as a director at each meeting of shareholders of ATI at which directors
of the class in which such person was placed are elected, and ATI shall use its
reasonable best efforts to cause the election of each person designated by USW.
6.4. Replacement of Directors Designated by USW. In the event that any
designee of USW for election to ATI's Board of Directors pursuant to the
foregoing provisions shall cease to serve as a director for any reason (except
under circumstances described in Section 6.5 below), the vacancy resulting
therefrom shall be filled as soon as practicable with a person designated by USW
pursuant to the above provisions.
6.5. Termination of USW's Right to Designate; Resignation. At such time as
(a) subject to the last sentence of this Section, USW and its Affiliates cease
to be the beneficial owner of Voting Securities representing at least 10% of the
total voting power of the then outstanding Voting Securities (the "Threshold
Percentage") or (b) there shall have been a Change of Control of USW, USW shall
no longer be entitled to designate any person for election to ATI's Board of
Directors. USW shall at such time or
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upon expiration of the term of this Agreement cause any person designated by it
pursuant to the foregoing provisions then serving on the Board of Directors to
resign promptly. In the event that USW's failure to beneficially own the
Threshold Percentage does not result from any transfer by USW of beneficial
ownership of Voting Securities, then USW shall have a period of one year after
the date it ceases to own the Threshold Percentage to cure such failure
(provided that this sentence shall no longer be operative once USW again
beneficially owns the Threshold Percentage, or in the event that prior to again
achieving such Threshold Percentage USW transfers beneficial ownership of any
Voting Securities).
6.6. Mandatory Recusal of USW's Board Designee. All designees of USW on the
Board of Directors of ATI shall recuse themselves from discussions of the
operations or planned operations of ATI or its Affiliates, if the interests of
such operations or planned operations reasonably could be expected to conflict
with the interests of any operations or planned operations of USW and its
Affiliates.
ARTICLE VII
REGISTRATION RIGHTS
7.1. Demand Registration. ATI agrees that upon the written request of USW it
will file a registration statement under the Securities Act (a "Registration
Statement") as to the number of shares of Common Stock then held by USW or its
Affiliates (the "Registrable Shares") specified in such request, provided that
ATI shall not be required to file more than such number of Registration
Statements that become effective and remain effective for the period referred to
in Section 7.3(j) equal to the quotient (rounded up to the nearest whole number)
obtained by dividing (i) the product of (A) the average closing price per share
of ATI's Common Stock for the thirty business days immediately preceding the
Notice Date (as defined in the Agreement of Exchange) and (B) the number of
shares of Common Stock issued in the Exchange, by (ii) $750 million, and further
provided that ATI shall not be required to file a Registration Statement if ATI
delivers to USW an opinion, in form and substance reasonably satisfactory to USW
and its counsel, to the effect that the Registrable Shares are freely
transferable under Section 4(1) of the Securities Act without regard to any
volume or other restrictions.
7.2. Company Registration. (a) If ATI shall determine to register any Common
Stock either for its own account or the account of a security holder or holders
exercising their respective demand registration rights, other than a
registration relating solely to employee benefit plans, or a registration
relating solely to a transaction described in Rule 145 promulgated under the
Securities Act, or a registration on any registration form that does not permit
secondary sales, ATI will:
(i) promptly give to USW written notice thereof; and
(ii) use its best efforts to include in such registration (and any
related qualification under blue sky laws or other compliance), except as
set forth in section 7.2(b) below, and in any underwriting involved therein,
all the Registrable Shares specified in a written request made by USW and
received by ATI within seven (7) days after the written notice from ATI
described in clause (i) above is mailed or delivered by ATI. Such written
request may specify all or a part of USW's Registrable Shares.
(b) If the registration of which ATI gives notice is for a registered public
offering involving an underwriting, ATI shall so advise USW as a part of the
written notice given pursuant to Section 7.2(a)(i). In such event, the right of
USW to registration pursuant to this Section 7.2 shall be conditioned upon USW's
participation in such underwriting and the inclusion of
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USW's Registrable Shares in the underwriting to the extent provided herein. USW
shall (together with ATI and the other holders of securities of ATI with
registration rights to participate therein distributing their securities through
such underwriting) enter into an underwriting agreement in customary form with
the representative of the underwriter or underwriters selected by ATI.
Notwithstanding any other provision of this Section 7.2, if the
representative of the underwriters advises ATI in writing that marketing factors
require a limitation on the number of shares to be underwritten, the
representative may (subject to the limitations set forth below) exclude all
Registrable Shares from, or limit the number of Registrable Shares to be
included in, the registration and underwriting. ATI shall so advise USW, and the
number of shares of Common Stock that are entitled to be included in the
registration and underwriting shall be allocated first to ATI for securities
being sold for its own account and thereafter as set forth in Section 7.2(c).
(c) In any circumstance in which all of the Registrable Shares and other
shares of Common Stock with registration rights (the "Other Shares") requested
to be included in a registration on behalf of USW or other selling shareholders
cannot be so included as a result of limitations or the aggregate number of
Registrable Shares and Other Shares that may be so included, the number of
Registrable Shares and Other Shares that may be so included shall be allocated
among USW and other selling shareholders requesting inclusion of shares pro rata
on the basis of the number of Registrable Shares and Other Shares that are held
by USW and other selling shareholders, provided, however, that such allocation
shall not operate to reduce the aggregate number of Registrable Shares and Other
Shares to be included in such registration. If USW or any other selling
shareholder does not request inclusion of the maximum number of Registrable
Shares and Other Shares allocated to it pursuant to the above-described
procedure, the remaining portion of its allocation shall be reallocated among
USW and other selling shareholders whose allocations did not satisfy their
requests pro rata on the basis of the number of Registrable Shares and Other
Shares which are held by USW and other selling shareholders, and this procedure
shall be repeated until all of the Registrable Shares and Other Shares which may
be included in the registration on behalf of USW and other selling shareholders
have been so allocated.
7.3. Registration Procedures. In the case of each registration involving
Registrable Shares pursuant to this Article VII, ATI will:
(a) furnish to USW, prior to the filing of a Registration Statement, copies
of such Registration Statement as it is proposed to be filed, and thereafter
such number of copies of such Registration Statement, each amendment and
supplement thereto (in each case including all exhibits thereto), the prospectus
included in such Registration Statement (including each preliminary prospectus)
and such other documents in such quantities as USW reasonably may request from
time to time in order to facilitate the disposition of such Registrable Shares;
(b) use all reasonable efforts to register or qualify the offer and sale of
such Registrable Shares under such other securities or blue sky laws of such
jurisdiction as USW reasonably requests and do any and all other acts and things
as reasonably may be necessary or advisable to enable USW to consummate the
disposition in such jurisdictions of the Registrable Shares owned by USW;
provided that ATI will not be required to (i) qualify generally to do business
in any jurisdiction where it would not otherwise be required to qualify but for
this subsection (b), (ii) subject itself to taxation in any such jurisdiction or
(iii) consent to general service of process in any such jurisdiction;
(c) use all reasonable efforts to cause such Registrable Shares to be
registered with or approved by such other governmental agencies or
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authorities as may be necessary by virtue of the business and operations of ATI
to enable USW to consummate the disposition of such Registrable Shares;
(d) notify USW, at any time when a prospectus relating thereto is required
to be delivered under the Securities Act, of the happening of any event as a
result of which the prospectus included in such Registration Statement or
amendment contains an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the statements
therein not misleading, and ATI will prepare a supplement or amendment to such
prospectus so that, as thereafter delivered to the purchasers of such
Registrable Shares, such prospectus will not contain an untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading;
(e) enter into customary agreements (including an underwriting agreement in
customary form and an indemnification agreement with USW in customary form) and
take such other actions as reasonably are required in order to expedite or
facilitate the disposition of such Registrable Shares;
(f) make available for inspection by USW, any underwriter participating in
any disposition pursuant to such registration, and any attorney, accountant or
other agent retained by USW or any such underwriter (collectively, the
"Inspectors"), all financial and other records, pertinent corporate documents
and properties of ATI (collectively, the "Records") as shall be reasonably
necessary to enable them to exercise their due diligence responsibility, and
cause the officers, directors and employees of ATI to supply all information
reasonably requested by any such Inspector in connection with such registration;
provided that (i) Records and information obtained hereunder shall be used by
such persons only to exercise their due diligence responsibility and (ii)
Records or information which ATI determines, in good faith, to be confidential
shall not be disclosed in such Registration Statement or otherwise by the
Inspectors unless (x) the disclosure of such Records or information is necessary
to avoid or correct a misstatement or omission in the Registration Statement or
(y) the release of such Records or information is ordered pursuant to a subpoena
or other order from a court or governmental authority of competent jurisdiction.
USW shall use its best efforts, prior to any such disclosure, to inform ATI that
such disclosure is necessary to avoid or correct a misstatement or omission in
the Registration Statement. USW further agrees that it will, upon learning that
disclosure of such Records or information is sought in a court or by a
governmental authority, give notice to ATI and allow ATI, at the expense of ATI,
to undertake appropriate action to prevent disclosure of the Records or
information deemed confidential;
(g) use all reasonable efforts to obtain a comfort letter from the
independent public accountants for ATI in customary form and covering such
matters of the type customarily covered by comfort letters as USW reasonably
requests;
(h) otherwise use all reasonable efforts to comply with all applicable rules
and regulations of the SEC, and make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of twelve months beginning within three months after the effective date
of such Registration Statement, which earnings statement shall satisfy the
provisions of section 11(a) of the Securities Act and Rule 158 thereunder;
(i) use all reasonable efforts to cause all such Registrable Shares to be
listed on each securities exchange on which similar securities issued by ATI are
listed; and
(j) use its best efforts (i) to have any registration of the Registrable
Shares declared effective as promptly as practicable after the filing thereof
and (ii) to keep such Registration Statement effective for a period
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(up to three months) sufficient to complete the distribution of the Registrable
Shares. ATI further agrees to supplement or make amendments to the Registration
Statement, if required by (x) the registration form utilized by ATI for such
registration or by the instructions applicable to such registration form, (y)
the Securities Act or the rules and regulations thereunder or (z) USW (or any
underwriter for USW) with respect to information concerning USW or such
underwriter or the plan of distribution to be utilized with respect to the
Registrable Shares. ATI agrees to furnish to USW copies of any such supplement
or amendment prior to its being used or filed with the SEC.
7.4. Conditions to Offerings. The obligations of ATI to take the actions
contemplated by Section 7.1 with respect to an offering of Registrable Shares
shall be subject to the following conditions:
(a) if the Registrable Shares are to be transferred pursuant to Section
5.3(a)(iv), USW shall have the right to select the investment banker or bankers
and, if applicable, lead manager or managers to administer the offering and its
or their counsel, provided that such lead manager or managers and such counsel
must be reasonably satisfactory to ATI; with respect to any such transfer, USW
and such investment banker(s) or manager(s) shall use best efforts to effect as
wide a distribution of such Registrable Shares as is reasonably practicable and
to prevent any Person who, together with its Affiliates and any "group" (within
the meaning of Section 13(a)(3) of the Exchange Act) of which such Person or any
Affiliate is a party, from purchasing in excess of 15% of the Voting Securities
being registered. ATI may require USW to furnish to ATI such information
regarding USW or the distribution of the Registrable Shares as ATI from time to
time may reasonably request in writing, in each case only as required by the
Securities Act or the rules and regulations thereunder or under state securities
or blue sky laws.
(b) in the event that the Registrable Shares are to be transferred pursuant
to Section 5.3(a)(iii), such Registrable Shares shall be transferred only to a
Person that USW believes in good faith after due inquiry is eligible with
respect to the Registrable Shares to file a Statement on Schedule 13G pursuant
to Rule 13d-1(b)(i) under the Exchange Act (without regard to the beneficial
ownership threshold set forth in such Rule), as such Rule is currently in
effect. USW shall have the right to select the investment banker or bankers and,
if applicable, the lead manager or managers to administer the offering and its
or their counsel, provided that such lead manager or managers and such counsel
must be reasonably satisfactory to ATI.
(c) there shall not have been an offering registered pursuant to Section 7.1
of this Agreement within the immediately preceding six months; and
(d) USW shall conform to all requirements of the Securities Act and the
Exchange Act applicable to it with respect to the offering and sale of such
Registrable Shares and shall advise each underwriter, broker or dealer through
which any of such Registrable Shares are offered that such Registrable Shares
are part of a distribution that is subject to the prospectus delivery
requirements of the Securities Act.
USW agrees that, upon receipt of any notice from ATI of the happening of any
event of the kind described in Section 7.3(d) of this Agreement, USW will
forthwith discontinue disposition of Registrable Shares pursuant to the
registration covering such Registrable Shares until USW's receipt of the copies
of the supplemented or amended prospectus contemplated by Section 7.3(a) of this
Agreement.
7.5. Additional Conditions. (a) ATI's obligations pursuant to Section 7.1
shall be suspended if (i) the fulfillment of such obligations would require ATI
to make a disclosure that would, in the reasonable good
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faith judgment of ATI's Board of Directors, be detrimental to ATI and premature
and the Board of Directors of ATI concludes, as a result, that it is essential
to defer the filing of the registration statement at such time, (ii) ATI has
filed or proposes to file a registration statement with respect to any of its
securities to be distributed in an underwritten public offering and it is
advised by its lead or managing underwriter that an offering by USW of
Registrable Shares would materially adversely affect the distribution of such
securities, provided that ATI is actively employing, or upon such proposed
filing actively employs, all reasonable efforts to cause any such filed
registration statement to become effective, or (iii) the fulfillment of such
obligations would require ATI to prepare financial statements not required to be
prepared for ATI to comply with its obligations under the Exchange Act at the
time that the registration statement is proposed to be filed. Such obligations
shall be reinstated (x) in the case of clause (i) above, upon the making of such
disclosure by ATI (or, if earlier, when such disclosure would either no longer
be necessary for the fulfillment of such obligations or no longer be
detrimental), (y) in the case of clause (ii) above, upon the conclusion of any
period during which ATI would not, pursuant to the terms of its underwriting
arrangements, be permitted to sell Registrable Securities for its own account
and (z) in the case of clause (iii) above, as soon as it would no longer be
necessary to prepare such financial statements to comply with the Securities
Act. The period during which USW is required to sell its Registrable Shares
pursuant to Section 7.3(j) shall be tolled for the duration of any suspension
pursuant to this Section 7.5(a).
(b) In connection with any distribution pursuant to Section 5.3(a)(iv), the
number of Registrable Shares to be registered pursuant to Section 7.1 of this
Agreement shall be reduced to the extent that ATI is advised in writing by an
investment banker of national standing that the sale of all of the Registrable
Shares requested to be registered by USW would materially and adversely affect
the market price of ATI's equity securities. If the number of shares registered
is reduced pursuant to this Section 7.5(b) by more than 50% of the number
requested to be registered by USW, the Registration Statement relating to such
reduced number shall not count as one of the Registration Statements available
to USW under Section 7.1.
7.6. Registration Expenses. All expenses incident to the performance of or
compliance with this Agreement by ATI, including, without limitation, all fees
and expenses of compliance with securities or blue sky laws (including
reasonable fees and disbursements of counsel in connection with blue sky
qualifications of the Registrable Shares), printing expenses, messenger and
delivery expenses, internal expenses (including, without limitation, all
salaries and expenses of its officers and employees performing legal or
accounting duties), the fees and expenses incurred in connection with the
listing of the Registrable Shares to be registered on each securities exchange
on which similar securities issued by ATI are then listed, fees and
disbursements of counsel for ATI and its independent certified public
accountants (including the expenses of any comfort letters required by or
incident to such performance), securities acts liability insurance (if ATI
elects to obtain such insurance), the reasonable fees and expenses of any
special experts retained by ATI in connection with such registration and the
fees and expenses of other persons retained by ATI will be borne by ATI.
Notwithstanding anything in this Section 7.6 to the contrary, ATI will not have
any responsibility for any registration or filing fees payable under any federal
or state securities or blue sky laws or for any of the expenses of USW incurred
in connection with any registration hereunder including, without limitation,
underwriting fees, discounts and commissions and transfer taxes, if any,
attributable to the sale of USW's Registrable Securities, counsel fees of USW
and travel costs.
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7.7. Indemnification; Contribution.
(a) Indemnification by ATI. ATI agrees to indemnify, to the fullest extent
permitted by law, USW (and any Affiliate thereof holding Registrable Shares),
each person who controls USW or such Affiliate (within the meaning of either the
Securities Act or the Exchange Act), and their respective directors and officers
against any and all losses, claims, damages, liabilities and expenses (including
attorneys' fees) caused by any untrue or alleged untrue statement of material
fact contained in any Registration Statement, prospectus or preliminary
prospectus (each as amended and/or supplemented, if ATI shall have furnished any
amendments or supplements thereto), or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein (in the case of a prospectus, in the light of the
circumstances under which they were made) not misleading; provided that ATI
shall not be required to indemnify USW or such Affiliate, such controlling
persons or their respective officers or directors for any losses, claims,
damages, liabilities or expenses resulting from any such untrue statement or
omission if such untrue statement or omission is made in reliance on and
conformity with any information with respect to USW or its Affiliates or the
underwriters furnished to ATI by USW or its Affiliates expressly for use
therein; and provided further, that with respect to any untrue statement or
omission or alleged untrue statement or omission made in any preliminary
prospectus, the indemnity agreement contained in this paragraph shall not inure
to the benefit of USW or such Affiliate, if the liability or expense results
from the fact that a copy of the prospectus was not sent or given to such person
at or prior to the written confirmation of sale of such Registrable Shares to
such person as required by the Securities Act, and if the untrue statement or
omission has been corrected in the prospectus unless such failure to deliver the
prospectus was a result of noncompliance by ATI with its obligations under
Section 7.3(a) hereof. In connection with an underwritten offering, ATI will
indemnify each underwriter thereof, the officers and directors of such
underwriter, and each person who controls such underwriter (within the meaning
of either the Securities Act or Exchange Act) to the same extent as provided
above with respect to the indemnification of USW; provided that such underwriter
agrees to indemnify ATI to the same extent as provided below with respect to the
indemnification of ATI by USW.
(b) Indemnification by USW. In connection with any registration in which USW
is participating, USW will furnish to ATI in writing such information with
respect to USW and its Affiliates as ATI reasonably requests for use in
connection with any such registration, prospectus, or preliminary prospectus and
agrees to indemnify ATI, its directors, its officers who sign the Registration
Statement and each person, if any, who controls ATI (within the meaning of
either the Securities Act or of the Exchange Act) to the same extent as the
foregoing indemnity from ATI to such holder, but only with respect to
information relating to such holder furnished to ATI in writing by USW expressly
for use in the Registration Statement, the prospectus, any amendment or
supplement thereto, or any preliminary prospectus.
(c) Conduct of Indemnification Proceedings. In case any proceeding
(including any governmental investigation) shall be instituted involving any
person in respect of which indemnity may be sought pursuant to Section 7.7(a) or
Section 7.7(b) of this Agreement, such person (hereinafter called the
"indemnified party") shall promptly notify the person against whom such
indemnity may be sought (hereinafter called the "indemnifying party") in writing
and the indemnifying party, upon request of the indemnified party, shall retain
counsel reasonably satisfactory to the indemnified party to represent the
indemnified party and any others the indemnifying party may designate in such
proceeding and shall pay the fees and disbursements of such counsel related to
such proceeding. In any such proceeding, any indemnified party shall have the
right to retain its own counsel, but the fees and expenses of such counsel shall
be at the expense of such indemnified party unless (i) the indemnifying party
and the indemnified party shall have mutually agreed to the retention of such
counsel or (ii) the named
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parties to any such proceeding (including any impleaded parties) include both
the indemnifying party and the indemnified party and the indemnified party shall
have been advised by counsel that representation of both parties by the same
counsel would be inappropriate due to actual or potential differing interests
between them. It is understood that the indemnifying party shall not, in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for the fees and expenses of more than one separate firm (in addition
to any local counsel) for all such indemnified parties, and that all such fees
and expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the indemnified parties, such firm shall be designated in
writing by the indemnified parties. The indemnifying party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent or if there be a final judgment for the plaintiff,
the indemnifying party agrees to indemnify the indemnified party from and
against any loss or liability by reason of such settlement or judgment.
Notwithstanding the foregoing sentence, if at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party
for fees and expenses of counsel as contemplated by the third sentence of this
Section 7.7(c), the indemnifying party agrees that it shall be liable for any
settlement of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such indemnifying
party of the aforesaid request and (ii) such indemnifying party shall not either
have reimbursed the indemnified party in accordance with such request or
reasonably objected in writing, on the basis of the standards set forth herein,
to the propriety of such reimbursement prior to the date of such settlement. No
indemnifying party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened proceeding in respect
of which any indemnified party is or could have been a party and indemnity could
have been sought hereunder by such indemnified party, unless such settlement
includes an unconditional release of such indemnified party from all liability
on claims that are the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this Section 7.7
from the indemnifying party is unavailable to an indemnified party hereunder in
respect of any losses, claims, damages, liabilities or expenses referred to in
this Section 7.7, then the indemnifying party, in lieu of indemnifying such
indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages, liabilities or
expenses in such proportion as is appropriate to reflect the relative fault of
the indemnifying party and indemnified parties in connection with the actions
which resulted in such losses, claims, damages, liabilities or expenses, as well
as any other relevant equitable considerations. The relative fault of such
indemnifying party and indemnified parties shall be determined by reference to,
among other things, whether any action in question, including any untrue or
alleged untrue statement of a material fact or omission or alleged omission to
state a material fact, has been made by, or relates to information supplied by,
such indemnifying party or indemnified parties, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such action. The amount paid or payable by a party as a result of the losses,
claims, damages, liabilities and expenses referred to above shall be deemed to
include, subject to the limitations set forth in Section 7.7(c), any legal or
other fees or expenses reasonably incurred by such party in connection with any
investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 7.7(d) were determined by pro rata
allocation or by any other method of allocation which does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
No person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
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If indemnification is available under this Section 7.7, the indemnifying
parties shall indemnify each indemnified party to the full extent provided in
Sections 7.7(a) and (b) without regard to the relative fault of said
indemnifying party or indemnified party or any other equitable consideration
provided for in this Section 7.7(d).
7.8. Rule 144. ATI covenants that it will file the reports required to be
filed by it under the Exchange Act and the rules and regulations adopted by the
SEC thereunder, and it will take such further action as USW may reasonably
request, all to the extent required from time to time to enable USW to sell
Voting Securities without registration under the Securities Act within the
limitation of the exemptions provided by Rule 144 under the Securities Act, as
such rule may be amended from time to time, or any similar rule or regulation
hereafter adopted by the SEC. Upon the request of USW, ATI will deliver to USW a
written statement as to whether it has complied with such requirements.
7.9. Certain Limitations. The rights of USW under this Article VII are
subject to Sections 5.3(a), 8.1, 8.2 and 8.3.
7.10. Reorganization, Reclassification, Merger, Consolidation or Disposition
of Assets. In the event that ATI shall propose to enter into an agreement of
merger, consolidation or other business combination with any Person which has a
class of equity securities having substantially the same rights as the Common
Stock (including, but not limited to, voting, dividend, liquidation and
redemption rights) and in connection with such agreement ATI will no longer have
a class of equity securities having substantially the same rights as the Common
Stock registered with the SEC pursuant to Section 12(b) or 12(g) of the Exchange
Act, ATI hereby covenants and agrees with USW that it will cause such Person to
assume the rights and obligations of ATI set forth in this Article VII and in
Article VIII (as they relate to Article VII), to the full extent set forth
herein.
ARTICLE VIII
RIGHTS OF FIRST OFFER AND FIRST REFUSAL
8.1. Notice of Intent to Transfer. USW shall give written notice (a "Notice
of Intent") to ATI at such time as it first forms a bona fide intention to
transfer, within the next twelve months, Voting Securities then held by USW or
its Affiliates in transactions permitted by clauses (iii) or (iv) of Section
5.3(a) (any registered public offering permitted by Section 5.3(a)(iii) or (iv)
being referred to hereinafter as a "Permitted Offering"). USW shall not be
permitted to transfer outstanding Voting Securities until 90 days after the
delivery of such Notice of Intent. USW shall include in such Notice of Intent
all additional information required to be included in a ROFO Notice or ROFR
Notice (as defined below) that reasonably can be provided at the time the Notice
of Intent is delivered. USW shall be under no obligation to send more than one
such Notice of Intent.
8.2. Right of First Offer. Any proposed transfer of Voting Securities by USW
in a Permitted Offering pursuant to Section 5.3(a)(iv) shall be subject to a
right of first offer on the part of ATI, as follows:
(a) USW shall deliver to ATI a notice (a "ROFO Notice") 10 days prior to the
delivery of a request pursuant to Section 7.1(a) to file a registration
statement, which ROFO Notice shall set forth, among other things: (i) the
identity of the prospective managing underwriter for the proposed offering, (ii)
the proposed price per share to public and net proceeds per share to USW, (iii)
the number of Voting Securities to be registered for sale, (iv) the identity (if
known) of any Person that has expressed an interest in purchasing in excess of
1% of the outstanding Voting Securities in the proposed offering, (v) any other
material terms and conditions of the proposed offering, (vi) the closing date
for the proposed
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offering (which date shall not be less than 30 days from the date on which the
ROFO Notice is delivered), and (vii) a statement from the managing underwriter
that it is highly confident that the proposed offering can be underwritten on
the terms and conditions set forth in the ROFO Notice. The ROFO Notice shall
constitute an irrevocable offer to ATI, upon the terms specified therein, to
purchase such Voting Securities.
(b) ATI may elect, at its option, to purchase all, but not less than all, of
the Registrable Shares referred to in the ROFO Notice at a price per share equal
to the net proceeds per share referred to in the ROFO Notice by delivering to
USW written notice of its election (a "Notice of Election") within 10 days after
receipt of the ROFO Notice. Such Notice of Election shall constitute a binding
obligation on the part of ATI, subject to standard terms and conditions for a
stock purchase agreement between an issuer and a significant shareholder, to
purchase such Voting Securities. Such Notice of Election shall include the
proposed date for the closing of the purchase, which shall be no later than 21
days following the delivery of such Notice of Election. ATI may designate a
third party to exercise its right of first offer.
(c) If ATI or its designee does not exercise the foregoing right of first
offer within such 10-day period, USW may proceed with the proposed offering as
described in the ROFO Notice. Such offering must be closed within 90 days after
the date the Registration Statement is filed with the SEC and the price per
share to the public and the net proceeds per share to USW must equal or exceed
such terms as set forth in ROFO Notice. USW shall, and shall cause its managing
underwriters to, use best efforts to cause the filing of the Registration
Statement and the closing of the offering pursuant thereto to occur as quickly
as possible. If the offering is not completed within such 90-day period or if
market conditions cause the managing underwriter to reduce the proposed price
per share to the public or the net proceeds to USW or otherwise to materially
revise the terms set forth in the ROFO Notice, USW shall promptly so notify ATI
and ATI shall again have a right of first offer pursuant to Section 8.2(b) with
respect to the Voting Securities referred to in the ROFO Notice, upon the
revised terms, except that such new right must be exercised within three
business days after such notification.
8.3. Right of First Refusal. Any proposed transfer of Voting Securities by
USW pursuant to Section 5.3(a)(iii) shall be subject to a right of first refusal
on the part of ATI, as follows:
(a) In the event of a transfer (or series of related transfers) which is not
a Permitted Offering and involves in the aggregate less than 1% of the then
outstanding Voting Securities, ATI shall have no right of first refusal.
(b) In all other cases, USW shall deliver to ATI a notice (a "ROFR Notice")
at least four business days prior to (x) in the case of a Permitted Offering,
the delivery of a request to file a registration statement pursuant to Section
7.1(a), or (y) in all other cases the execution of a stock purchase agreement or
other action committing USW to such transfer. Such ROFR Notice shall set forth
(A) the identities of each proposed transferee that, together with its
Affiliates and any group (within the meaning of Section 13(d)(3) of the Exchange
Act) of which such transferee or any Affiliate is a part, proposes to purchase
1% or more of the then outstanding Voting Securities (a "1% Purchaser") and the
total number of shares such 1% Purchaser proposes to acquire, (B) the aggregate
number of Voting Securities to be transferred to all transferees, (C) the
proposed price per share at which the Voting Securities are to be transferred,
and the net proceeds per share to USW therefrom, and (D) any other material
terms and conditions of the proposed transfer. In the case of a Permitted
Offering, such ROFR Notice shall also contain the information specified in
clauses (vi) and (vii) of Section 8.2(a). The ROFR Notice shall constitute an
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irrevocable offer to sell such Voting Securities to ATI, upon the terms
specified therein.
(c) In the case of other than a Permitted Offering, ATI may elect to
purchase (x) with respect to non-1% Purchasers, all, but not less than all, of
the Voting Securities referred to in the ROFR Notice which are to be transferred
to such non-1% Purchasers, or (y) any or all of the blocks to be transferred to
1% Purchasers or (z) any combination of (x) and (y).
(d) In the case of a Permitted Offering, ATI may elect to purchase (x) with
respect to non-1% Purchasers, all but not less than all, of the Voting
Securities referred to in the ROFR Notice which are to be sold to such non-1%
Purchasers, (y) one or more of the blocks to be transferred to 1% Purchasers
provided that, unless ATI effects the purchase described in clause (x) above,
ATI must leave at least one such block unpurchased, or (z) any combination of
(x) and (y).
(e) Any election by ATI described in paragraphs (c) or (d) above shall be
upon the terms and conditions set forth in the ROFR Notice and shall be effected
by sending to USW a Notice of Election within four business days after receipt
of the ROFR Notice. Such Notice of Election shall constitute a binding
obligation, subject to standard terms and conditions for a stock purchase
agreement between an issuer and a significant shareholder, to purchase the
specified amount of Voting Securities (at a price per share equal to the net
proceeds per share referred to in the ROFR Notice). Such Notice of Election also
shall include the proposed date for the closing of the purchase, which shall be
no later than 21 days following the delivery of such Notice of Election. ATI may
designate a third party to exercise its right of first refusal.
(f) If ATI or its designee does not exercise its right of first refusal
within such four-day period, USW may proceed with the proposed transfer
described in the ROFR Notice. Such transfer must be closed within 30 days after
the date the ROFR Notice is delivered (with respect to other than Permitted
Offerings), and within 90 days after the Registration Statement is filed with
the SEC, with respect to Permitted Offerings, and the price per share and the
net proceeds per share to USW must equal or exceed such terms set forth in the
ROFR Notice. USW shall, and shall cause any lead manager or managing underwriter
to, use best efforts to cause the filing of the Registration Statement and the
closing of the offering pursuant thereto to occur as quickly as possible. If the
proposed price per share or net proceeds per share are less than those set forth
in the ROFR Notice, USW shall promptly so notify ATI and ATI shall again have a
right of first refusal pursuant to this Section 8.3 with respect to the Voting
Securities referred to in the ROFR Notice, upon the revised terms, except such
that new right must be exercised within three business days after such
notification.
ARTICLE IX
TERM OF AGREEMENT
9.1. Term of Agreement. The term of this Agreement shall be until the
earlier of (a) the date, following the consummation of the Exchange or the
termination of both the Agreement of Exchange and the Trust Agreement of
Exchange, when USW and its Affiliates cease to beneficially own Voting
Securities representing at least 5% of the total voting power of the then
outstanding Voting Securities and (b) July 25, 2004; provided, however, that the
provisions of Article V and Article VIII shall irrevocably terminate upon any
Change of Control of ATI.
Upon the expiration of the term of this Agreement, all further obligations
of the parties hereunder shall terminate, except that (i) if there shall have
been a Change of Control of USW prior to the expiration of the term of this
Agreement, the agreements set forth in Sections 5.1(a), 5.2
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and 5.3 and Articles VIII and X shall remain in effect until the earlier of (A)
a change of Control of ATI and (B) the later of (x) the expiration of the term
of this Agreement and (y) four years from the date of the Change of Control of
USW, (ii) the agreement set forth in Section 5.1(c) shall survive indefinitely,
(iii) the rights in Article VI shall survive until termination pursuant to
Section 6.5, (iv) the rights in Article VII. shall survive until the 10th
anniversary of the Effective Time or the Closing Date (as each are defined in
the Agreement of Exchange), as the case may be, and (v) nothing herein shall
relieve any party from liability for any breach hereof.
ARTICLE X
MISCELLANEOUS
10.1. Legend; Removal of Legend. (a) All certificates evidencing Voting
Securities beneficially owned by USW shall have the following legend, which
shall remain on such certificates until such time as the securities represented
by such certificates are no longer subject to the restrictions of this
Agreement:
THE SHARES REPRESENTED HEREBY ARE SUBJECT TO THE PROVISIONS OF AN AMENDED
AND RESTATED INVESTMENT AGREEMENT (INCLUDING THE RESTRICTIONS ON TRANSFER
SET FORTH THEREIN) DATED AS OF SEPTEMBER 30, 1995, BETWEEN ATI AND U S WEST,
INC. AND MAY NOT BE SOLD, TRANSFERRED OR OTHERWISE ALIENATED EXCEPT IN
ACCORDANCE THEREWITH. A COPY OF SUCH AGREEMENT IS ON FILE AT THE OFFICE OF
THE CORPORATE SECRETARY OF ATI.
(b) Any legend endorsed on a certificate pursuant to paragraph (a) shall be
removed if the Voting Securities represented by such certificate shall have been
effectively transferred in compliance with clause (ii), (iii) or (iv) of the
second sentence of Section 5.3(a) or all obligations of USW under Articles V and
VIII of this Agreement have terminated, or a Change of Control of ATI has
occurred.
10.2. Severability. If any term, provision, covenant or restriction of this
Agreement is determined to be invalid, void or unenforceable, the remainder of
the terms, provisions, covenants and restrictions of this Agreement shall remain
in full force and effect, unless such action would substantially impair the
benefits to either party of the remaining provisions of this Agreement.
10.3. Specific Enforcement. The parties hereto acknowledge and agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to an injunction or injunctions to prevent or cure breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy to which they may be
entitled by law or equity.
10.4. Entire Agreement; Amendments. Except to the extent that other
agreements are specifically referred to herein, this Agreement between ATI and
USW contains the entire understanding of the parties with respect to the matters
covered hereby and thereby and, except as specifically set forth herein or
therein, neither ATI nor USW makes any representation, warranty, covenant or
undertaking with respect to such matters. This Agreement amends and restates in
its entirety that certain Investment Agreement, dated as of July 25, 1994,
between ATI's predecessor, AirTouch Communications, a California corporation and
USW. This Agreement may be amended only by an agreement in writing executed by
the parties hereto. The parties hereto may amend this Agreement without notice
to or the consent of any third party.
10.5. Notices. Any notice or other communication required or permitted to be
given hereunder shall be in writing and shall be effective
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(a) when personally delivered or transmitted by telecopier on a business day
during normal business hours where such notice is to be received at the address
or number designated below or (b) on the business day following the date of
mailing by overnight courier, fully prepaid, addressed to such address,
whichever shall first occur. The addresses for such communications shall be:
If to ATI: AirTouch Communications, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇, Esq.
Senior Vice President, Legal and
External Affairs
With a copy to: Pillsbury Madison & Sutro
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ III
If to USW: U S West, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: President
With a copy to: U S West, Inc.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: General Counsel
Any party hereto may from time to time change its address for notices under this
Section 10.5 by giving at least 10 days' notice of such changed address to the
other party hereto.
10.6. Waivers. No waiver by either party of any default with respect to any
provision, condition or requirement of this Agreement shall be deemed to be a
continuing waiver in the future thereof or a waiver of any other provision,
condition or requirement of this Agreement; nor shall any delay or omission of
either party to exercise any right hereunder in any manner impair the exercise
of any such right accruing to it thereafter.
10.7. Headings. The headings herein are for convenience only, do not
constitute a part of this Agreement and shall not be deemed to limit or affect
any of the provisions of this Agreement.
10.8. Successors and Assigns. This Agreement shall be binding upon and inure
to the benefit of the parties and their successors and legal representatives.
The parties hereto may amend this Agreement without notice to or the consent of
any third party. Neither ATI nor USW shall assign this Agreement or any rights
hereunder without the prior written consent of the other (which consent may be
withheld for any reason in the sole discretion of the party from whom consent is
sought); provided, however, that ATI may assign its rights and delegate its
obligations under this Agreement to any corporation which becomes the owner of
all of the outstanding Voting Securities in connection with any reincorporation
of ATI and which agrees in writing to become bound by the terms of this
Agreement, and thereafter all references to ATI hereunder shall become
references to such assignee; and provided further that USW may assign its rights
(but not its obligations) under this Agreement to any Wholly Owned Subsidiary of
USW which agrees in writing to become bound by the terms of this Agreement, but
no such assignment or obligation by USW shall release USW from, and USW shall
remain liable for the performance by such assignee of, its obligations
hereunder.
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10.9. No Third Party Beneficiaries. This Agreement is intended for the
benefit of the parties hereto and their respective permitted successors and
assigns and is not for the benefit of, nor may any provision of this Agreement
be enforced by, any other person.
10.10. Governing Law. This Agreement shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware without regard to
the principles of conflicts of laws.
10.11. Counterparts. This Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts shall together constitute one and the same
instrument.
10.12. Arbitration. The parties agree to submit their disputes to
arbitration in accordance with the Arbitration Agreement dated as of the date
hereof between ATI and USW.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized officers as of the date hereof.
AIRTOUCH COMMUNICATIONS, INC.
By ______________________________
Name:
Title:
U S WEST, INC.
By ______________________________
Name:
Title: