Registration No 33-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
AT&T CORP.
A New York I.R.S. Employer
Corporation No. 13-4924710
32 Avenue of the Americas,
New York, New York 10013-2412
(212-387-5400)
Agent for Service
S.L. Prendergast
Vice President and Treasurer
Please send copies of all communications to:
Charles S. Whitman III Albert F. Lilley
Davis Polk & Wardwell Milbank, Tweed, Hadley & McCloy
450 Lexington Avenue 1 Chase Manhattan Plaza
New York, New York 10017 New York, New York 10005
Approximate date of commencement of proposed sale to the public: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividends or
interest reimbursement plans, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
Proposed Proposed
Maximum Maximum Amount of
Title of Each Class of Amount to be Offering Price Aggregate Registration
Securities to be Registered Registered Per Unit (1) Offering Price (1) Fee
<S> <C> <C> <C> <C>
Common Shares, par value $1.00 per share 35,859,1995
shares $47.75 $1,712,276,752.25 $590,444.40
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee in
accordance with Rule 457 under the Securities Act of 1933.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as the Commission,
acting pursuant to said Section 8(a), may determine.
<PAGE>
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor may
offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus shall not constitute an offer to sell or
the solicitation of an offer to buy nor shall there be any sale of these
securities in any State in which such offer, solicitation or sale would be
unlawful prior to registration or qualification under the securities laws of
any such state.
PROSPECTUS
SUBJECT TO COMPLETION, DATED DECEMBER 8, 1994
35,859,199 Shares
[AT&T LOGO]
AT&T CORP.
Common Shares
(par value $1.00 per share)
All of the 35,859,199 common shares (the "Common Shares") of AT&T Corp. being
offered by the Selling Shareholder are outstanding common shares of the
Company. The Company will not receive any of the proceeds from the sale of
such Common Shares. See "Selling Shareholder".
The Common Shares are listed on the New York, Boston, Chicago, Pacific and
Philadelphia Stock Exchanges. On December 7, 1994, the reported last sale
price of the Company's common shares on the New York Stock Exchange was $47 1/4
per share. See "Price Range of Common Shares and Dividends".
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
PRICE $ A SHARE
<TABLE>
<CAPTION>
Proceeds to
Initial Public Underwriting Selling
Offering Price Discount (1) Shareholder (2)
<S> <C> <C> <C>
Per Share ........ $ $ $
Total ............. $ $ $
</TABLE>
(1) The Company and the Selling Shareholder have agreed to indemnify the
Underwriters against certain liabilities, including liabilities under the
Securities Act of 1933.
(2) Before deducting expenses, estimated to be $900,000, of which $750,000 will
be payable by the Company and $150,000 will be payable by the Selling
Shareholder.
The Common Shares are offered by the several Underwriters named herein,
subject to prior sale, when, as and if accepted by the Underwriters. It is
expected that certificates for the Common Shares will be ready for delivery
in New York on or about December , 1994.
Goldman, Sachs & Co.
Morgan Stanley & Co.
Incorporated
December , 1994
<PAGE>
AVAILABLE INFORMATION
AT&T Corp. ("AT&T" or the "Company") is subject to the informational
requirements of the Securities Exchange Act of 1934 ("Exchange Act") and in
accordance therewith files reports, proxy statements and other information
with the Securities and Exchange Commission ("SEC"). Such reports, proxy
statements and other information filed by AT&T can be inspected and copied at
the public reference facilities maintained by the SEC at Room 1024, Judiciary
Plaza, 450 Fifth Street, N.W., Washington, DC 20549, and at the regional
offices of the SEC located at 7 World Trade Center, 13th Floor, New York, New
York 10048 and Northwestern Atrium Center, 500 West Madison Street, Suite
1400, Chicago, Illinois 60661-2511. Such material can also be inspected at
the New York, Boston, Chicago, Pacific and Philadelphia Stock Exchanges.
Copies of such material can also be obtained at the prescribed rates from the
Public Reference Section of the SEC, Room 1024, Judiciary Plaza, 450 Fifth
Street, N.W., Washington, DC 20549.
INCORPORATION OF DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the SEC (File No.
1-1105) and are incorporated herein by reference.
(1) AT&T's Annual Report on Form 10-K for the year 1993;
(2) AT&T's Quarterly Reports on Form 10-Q for the periods ended March 31,
1994, June 30, 1994 and September 30, 1994; and
(3) AT&T's Current Reports on Form 8-K dated January 14, 1994, January 27,
1994, March 4, 1994, March 23, 1994, April 5, 1994, August 16, 1993, as
amended (filed April 19, 1994), April 22, 1994, August 16, 1993, as amended
(filed May 20, 1994), May 26, 1994, July 15, 1994, August 16, 1993, as
amended (filed August 23, 1994), August 25, 1994, September 14, 1994,
September 19, 1994, October 26, 1994 and December 8, 1994.
All documents filed pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of this Prospectus and prior to the
termination of the offering of the Common Shares shall be deemed to be
incorporated by reference in this Prospectus and to be part hereof from the
date of filing of such documents; provided, however, that the documents
enumerated above or subsequently filed by AT&T pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act in each year during which the
offering made hereby is in effect prior to the filing with the SEC of AT&T's
Annual Report on Form 10-K covering such year shall not be incorporated by
reference herein or be a part hereof from and after the filing of such Annual
Report on Form 10-K. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified
or superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or
is deemed to be incorporated by reference herein modifies or supersedes such
statement. Any such statement so modified or superseded shall not be deemed,
except as so modified or superseded, to constitute a part of this Prospectus.
COPIES OF THE ABOVE DOCUMENTS AND THE 1993 AT&T ANNUAL REPORT TO SHAREOWNERS
MAY BE OBTAINED UPON REQUEST WITHOUT CHARGE FROM THE SECRETARY'S DEPARTMENT,
AT&T, ROOM 2420E, 32 AVENUE OF THE AMERICAS, NEW YORK, NEW YORK 10013-2412
(TELEPHONE NUMBER 212-387-5400).
IN CONNECTION WITH THIS OFFERING, THE UNDERWRITERS MAY EFFECT TRANSACTIONS
WHICH STABILIZE OR MAINTAIN THE MARKET PRICE OF THE COMMON SHARES AT LEVELS
ABOVE THOSE WHICH MIGHT OTHERWISE PREVAIL IN THE OPEN MARKET. SUCH
TRANSACTIONS MAY BE EFFECTED ON THE NEW YORK, BOSTON, CHICAGO, PACIFIC AND
PHILADELPHIA STOCK EXCHANGES OR IN THE OVER-THE-COUNTER MARKET. SUCH
STABILIZING, IF COMMENCED, MAY BE DISCONTINUED AT ANY TIME.
<PAGE>
THE COMPANY
AT&T is among the world's networking leaders, providing communications
services, as well as network equipment and computer systems, to businesses,
consumers, telecommunications service providers and government agencies.
Worldwide, AT&T's network handles more than 175 million voice, data, video
and facsimile messages on an average business day. AT&T Bell Laboratories
engages in basic research as well as product and service development. AT&T
also offers a general-purpose credit card and other financial services.
AT&T has organized its businesses into the following functional groups:
AT&T COMMUNICATIONS SERVICES GROUP provides a wide range of voice, data and
image telecommunications services to consumers, large and small businesses,
and government entities. For consumers, these services primarily consist of
long distance telephone, AT&T Calling Card, and domestic and international
operator services. AT&T provides business and government customers with long
distance as well as other advanced telecommunications services, including
toll-free "800" services, private line services and integrated digital
network services. In addition, AT&T constructs, operates and manages global
telecommunications networks for customers' and for its own use. In September
1994, a subsidiary of AT&T merged with McCaw Cellular Communications, Inc.
("McCaw"), the nation's largest cellular communications company, which will
form the basis for AT&T's future growth in the wireless communications area.
See "Recent Developments" in this Prospectus.
AT&T GLOBAL INFORMATION SOLUTIONS COMPANY develops, manufactures, sells, and
services computer and information systems for businesses. These systems help
customers manage both computing and communications in one integrated package.
AT&T MULTIMEDIA PRODUCTS GROUP meets the equipment needs of businesses,
government entities and consumers. This group offers products such as private
branch exchanges, voice and message processing products, and video
conferencing systems. This group also has responsibility for the design,
manufacture and sale of cellular, corded and cordless phones, answering
systems, facsimile machines and other telecommunications products.
AT&T NETWORK SYSTEMS GROUP has primary responsibility for the development,
manufacture, installation and maintenance of communications equipment
marketed to local exchange carriers, private telecommunications network
operators, foreign telephone operators, government entities, private
businesses and the Company itself. In addition to advanced switching and
transmission systems, this group is a leader in the provision of hardware and
software systems integration for wireless service providers, cable television
operators and other telecommunications carriers.
AT&T BELL LABORATORIES provides support to all of the Company's business
units. It designs and develops new products, systems, software and services,
and carries out a broad program of fundamental research to provide the
technology base for AT&T's future. AT&T Bell Laboratories is responsible for
the invention or development of many significant telecommunications devices
and processes, including the transistor, cellular wireless communications
technology, integrated circuits and many types of lasers.
AT&T FINANCIAL SERVICES AND LEASING consists of AT&T Universal Card Services
Corp., a general- purpose credit card company, wholly owned by AT&T, and AT&T
Capital Corporation, a publicly-traded full- service finance and leasing
company, 86%-owned by AT&T.
AT&T has numerous subsidiary companies and offices throughout the world. In
1993, AT&T announced its intention to implement an international
organizational structure, along regional lines, to complement the functional
groups described above and to promote shared accountability among regional
units and those groups. Three regional units, representing all AT&T
businesses, have been formed: Latin America, with headquarters in Coral
Gables, Florida; Asia/ Pacific, with headquarters in Hong Kong; and
Europe/Middle East/Africa, with headquarters in Brussels.
The Company was incorporated on March 3, 1885 under the laws of the State of
New York and has its principal executive offices at 32 Avenue of the
Americas, New York, New York 10018-2412 (telephone number 212-387-5400).
<PAGE>
RECENT DEVELOPMENTS
Merger With McCaw
On September 19, 1994, a subsidiary of AT&T merged with McCaw, the leading
provider of wireless communications services in the United States. McCaw's
service offerings include cellular, messaging, data transmission and
air-to-ground communications. It has cellular operations in more than 100
cities in the United States with a total population of more than 100 million,
approximately 80% of which is in the 30 most populous markets in the United
States. McCaw has approximately 3.6 million cellular customers and 600,000
messaging subscribers. Revenue and net income for McCaw for the nine months
ended September 30, 1994 were $2,062 million and $34 million, respectively.
The merger with McCaw is expected to allow AT&T to better meet the
communications requirements of its customers. Under the terms of a proposed
antitrust consent decree among AT&T, McCaw and the United States, the
operations of AT&T and McCaw are subject to several conditions, including
maintaining McCaw as a separate business entity with separate officers and
personnel. After McCaw provides equal access to all interexchange carriers
AT&T may: use the AT&T brand on McCaw's cellular services; jointly
market its interexchange services with McCaw's cellular service; and
provide customers with a single bill for both wired and wireless services.
Option To Acquire Publicly Held Shares Of LIN Broadcasting
The Private Market Value Guarantee ("PMVG") between McCaw and its 52%-owned
subsidiary, LIN Broadcasting Corporation ("LIN"), for the benefit of LIN's
stockholders (other than McCaw and its affiliates), provides that on or about
January 1, 1995, a process will be commenced to determine the private market
price per share of LIN. Following the determination of the private market
price, McCaw will have 45 days to decide whether to proceed with the
acquisition of all the public shares of LIN at the private market price. Such
an acquisition would involve a substantial capital expenditure. If AT&T and
McCaw decide not to proceed with the acquisition, the PMVG provides that
McCaw will put LIN in its entirety up for sale, under the direction of the
LIN independent directors, in a manner intended by the LIN independent
directors to maximize value for all the LIN shares.
Personal Communications Services Auctions
On October 28, 1994, AT&T Wireless PCS Inc., a wholly owned subsidiary of
AT&T , filed an application with the FCC establishing its eligibility to bid
on broad-band personal communication service ("PCS") radio licenses to
provide wireless telephone service in 30 of 51 major trading areas in the
United States. The FCC auction began on December 5, 1994. It is not possible
to predict the outcome of the auction or the amounts successful bidders will
be required to pay in order to win licenses as about 30 companies have made
deposits and are eligible for bidding. In the event AT&T determines to bid
and is successful in obtaining one or more licenses, substantial expenditures
could be required for the licenses and for constructing associated systems.
Growth In Recent International Alliances To Provide Telecommunications
Service
On November 9, 1994, AT&T and Grupo Alfa ("Alfa") of Mexico announced that
they had signed a memorandum of understanding pursuant to which they plan to
work together to develop a possible joint venture to deliver
telecommunication services to Mexico's business and residential customers. If
such a joint venture is formed, Alfa's share of the voting equity would be
51% and AT&T's 49%. The services the joint venture would offer and whether
AT&T and Alfa would proceed with the formation of the joint venture depend in
part on the terms and conditions of long distance competition and concessions
to be issued in early 1995 by the Secretariat of Communications and
Transportation, the agency that regulates telecommunications in Mexico, as
well as the joint venture's ability to secure an operating license.
Another significant recent international alliance is WorldPartners Company
("WorldPartners"), which AT&T formed as an equity partnership in 1993 with
Kokusai Denshin Denwa Co. Ltd. of Japan and Singapore Telecom to support the
provision of high quality advanced telecommunications services to
multinational business customers marketed under the name "WorldSource(SM)."
WorldPartners has recruited to date a total of nine telecommunications
services partners as members of the WorldPartners Association, the consortium
of companies offering WorldSource services, covering twenty-four countries in
North America, Europe and Asia. During 1994, a consortium of Dutch, Swiss and
Swedish telephone authorities known as Unisource joined WorldPartners.
Competition for WorldPartners to serve the communication needs of
multinational corporations is significant, consisting often of local national
telephone
<PAGE>
authorities as well as consortia formed between MCI and British
Telecommunications and, pending regulatory approval, among Sprint and France
Telecom and Deutsche Telekom.
Third Quarter Results
On October 20, 1994, AT&T announced its consolidated results (including the
operations of McCaw) for the third quarter of 1994. Reported earnings per
share were $.67 vs. $.66 in the third quarter of 1993, but included merger
expenses and other one-time charges totalling $327 million. Excluding McCaw
merger-related expenses, AT&T's earnings per share would have been $.78, an
increase of 18%.
Total revenues increased by 8.3% in the third quarter, largely due to a 3.5%
increase in telecommunications services revenues and a 20.1% increase in the
sales of products and systems. Telecommunications services revenues increased
largely because of an increase in long distance conversation volumes of more
than 7% from the prior year period and growth in cellular subscribers.
Product sales gains were led by increases in telecommunications network
products and systems and computer products and systems.
Combined operating profits, including merger expenses, for the third quarter
of 1994 increased $188 million, or 10.6%, to $1,957 million. Excluding
one-time expenses, operating income increased 24.4%.
<PAGE>
CAPITALIZATION
The following table sets forth the unaudited consolidated short-term debt and
capitalization of AT&T at September 30, 1994.
<TABLE>
<CAPTION>
September 30, 1994
(Dollars in millions,
except per share amount)
<S> <C>
Debt maturing within one year $13,679
Long-term debt including capital leases $10,866
Shareowners' equity:
Common shares, par value $1.00 per share: 2,000,000,000
shares
authorized, 1,562,667,000 shares outstanding 1,563
Additional paid-in capital 15,375
Guaranteed ESOP obligation (305)
Foreign currency translation adjustments 219
Retained deficit (151)
Total shareowners' equity 16,701
Total capitalization $27,567
</TABLE>
<PAGE>
SELECTED FINANCIAL DATA
The selected financial data set forth below for the years ended December 31,
1993, 1992 and 1991 and at December 31, 1993 and 1992 are derived from AT&T's
restated audited consolidated financial statements. The income statement data
for the nine month periods ended September 30, 1994 and 1993 and the balance
sheet data at September 30, 1994 are derived from AT&T's unaudited consolidated
financial statements.
<TABLE>
<CAPTION>
Nine Months ended Year Ended
September 30, December 31,
1994 1993(1) 1993(1) 1992 1991(2)
(Dollars in millions, except per share amounts)
<S> <C> <C> <C> <C> <C>
Income Statement Data:
Total revenues $53,984 $50,281 $69,351 $66,647 $64,455
Operating income 5,814 4,890 6,568 6,629 1,570
Interest expense 580 706(3) 1,032 1,153 1,305
Income before cumulative effects of
accounting changes 3,372 2,926 3,702 3,442 171
Cumulative effects of accounting
changes for:
--Postretirement benefits -- (7,023) (7,023) -- --
--Postemployment benefits -- (1,128) (1,128) -- --
--Income taxes -- (1,457) (1,457) -- --
Net income (loss) $3,372 $(6,682) $(5,906) $3,442 $171
Net income (loss) per share $2.16 $(4.33) $(3.82) $2.27 $.12
Dividends declared per common share $.99 $.99 $1.32 $1.32 $1.32
</TABLE>
<TABLE>
<CAPTION>
September 30, December 31,
1994 1993 1992
<S> <C> <C> <C>
Balance Sheet Data:
Total assets $75,547 $69,393 $66,104
Long-term debt including capital
leases 10,866 11,802 14,166
Total debt (including current
portion) (3) 24,545 22,865 21,857
Total shareowners' equity 16,701 13,374 20,313
</TABLE>
(1) 1993 data reflect a $9.6 billion net charge for three U.S. accounting
changes: Statement of Financial Accounting Standards ("SFAS") No. 106,
"Employers' Accounting for Postretirement Benefits Other than Pensions", SFAS
No. 112, "Employers' Accounting for Postemployment Benefits", and SFAS No.
109, "Accounting for Income Taxes".
(2) 1991 data reflect $4.5 billion of business restructuring and other
charges.
(3) Long-term debt redemption--in March 1993, AT&T issued redemption notices
for debentures and notes with an aggregate outstanding balance of $1,750
million at March 31, 1993. Expenses associated with these redemptions of $83
million ($52 million or $.03 per share after taxes) were included in interest
expense for the three months ended March 31, 1993.
<PAGE>
SELLING SHAREHOLDER
All of the Common Shares offered hereby are being sold by BT USA Holdings,
Inc. (the "Selling Shareholder"), a wholly-owned subsidiary of British
Telecommunications plc.
The Selling Shareholder acquired the Common Shares in connection with the
merger on September 19, 1994 of a subsidiary of AT&T with McCaw. Under the
terms of the merger agreement, the Selling Shareholder received the Common
Shares in exchange for its 35,859,199 shares of McCaw, which it purchased
beginning in 1989.
The Common Shares represent approximately 2.3% of the total outstanding
common shares of AT&T. The Common Shares are being registered pursuant to the
terms of a Registration Rights Agreement, dated as of September 19, 1994,
between AT&T and the Selling Shareholder. The Selling Shareholder will not
own any common shares of AT&T following completion of the offering.
The Selling Shareholder is being advised in connection with the offering by
Donaldson, Lufkin & Jenrette Securities Corporation and N M Rothschild &
Sons Limited.
DESCRIPTION OF COMMON SHARES OF AT&T
All common shares (par value $1 per share) of AT&T are entitled to
participate equally in dividends. Each shareowner has one vote for each share
registered in the shareowner's name. All common shares would rank equally on
liquidation, and common shares (including the Common Shares offered by this
Prospectus) are fully-paid and nonassessable by AT&T. Holders of common
shares have no preemptive rights.
AT&T is authorized to issue common shares under the Shareowner Dividend
Reinvestment and Stock Purchase Plan and various employee benefit plans of
AT&T and its subsidiaries.
Certain Preferential Rights Of Holders Of Preferred Shares
AT&T's authorized capital includes a class of 100,000,000 preferred shares,
par value $1 per share, issuable in series, cumulative as to dividends and
having an authorized maximum liquidation preference of $8,000,000,000. The
preferred shares rank prior to the common shares both as to dividends and on
liquidation. There are no preferred shares issued and outstanding. AT&T's
Board of Directors is authorized to establish the number of shares,
designations, relative rights, preferences and limitations, including voting
and conversion rights, of any future series of preferred shares.
PRICE RANGE OF COMMON SHARES AND DIVIDENDS
The Company's common shares are traded on the New York, Philadelphia, Boston,
Chicago and Pacific Stock Exchanges under the symbol "T". They also trade on
the London, Tokyo and other foreign stock exchanges. The following table sets
forth the high and low sale prices of the common shares for the periods
indicated as reported on the New York Stock Exchange Composite Tape:
<TABLE>
<CAPTION>
High Low
<S> <C> <C>
Fiscal 1992
First Quarter 41-3/8 36-5/8
Second Quarter 44-5/8 40-1/8
Third Quarter 45-3/8 42
Fourth Quarter 53-1/8 40-5/8
Fiscal 1993
First Quarter 59-1/8 50-1/8
Second Quarter 63-7/8 53-3/4
Third Quarter 65 57-3/8
Fourth Quarter 61-3/8 52
Fiscal 1994
First Quarter 57-1/8 50-5/8
Second Quarter 57-1/8 49-1/2
Third Quarter 55-7/8 52-1/2
Fourth Quarter (through December 7, 1994) 55-1/4 47-1/4
</TABLE>
Dividends on common shares are currently paid at the rate of $.33 per share
per quarter ($1.32 per year).
<PAGE>
UNDERWRITING
Under the terms and subject to the conditions contained in an Underwriting
Agreement dated December , 1994, the Underwriters named below have
severally agreed to purchase and the Selling Shareholder has agreed to sell
to them, severally, the respective number of Common Shares set forth below.
<TABLE>
<CAPTION>
Number of
Underwriter Common Shares
<S> <C>
Goldman, Sachs & Co. .................
Morgan Stanley & Co. Incorporated ....
Total ............................... 35,859,199
</TABLE>
The Underwriting Agreement provides that the obligations of the several
Underwriters to pay for and accept delivery of the Common Shares are subject
to the approval of certain legal matters by their counsel and to certain
other conditions. The nature of the Underwriters' obligation is such that
they are committed to take and pay for all of the shares offered hereby if
any are taken.
The Underwriters propose to offer part of the Common Shares directly to the
public at the public offering price set forth on the cover page hereof and
part to certain dealers at a price which represents a concession not in
excess of $ a share under the public offering price. Any Underwriter may
allow, and such dealers may reallow, a concession not in excess of $ a
share to other Underwriters or certain other dealers who have entered into a
Dealer Agreement.
The Company and the Selling Shareholder have agreed that, until 90 days
following the date hereof, they will not, without the consent of Goldman,
Sachs & Co. and Morgan Stanley & Co. Incorporated, offer, sell or contract to
sell, or announce the offering of any common shares of the Company or
securities convertible into or exchangeable for such common shares, with
certain exceptions.
The Company, the Selling Shareholder and the Underwriters have agreed to
indemnify each other against certain liabilities, including liabilities under
the Securities Act of 1933.
<PAGE>
FOR FLORIDA RESIDENTS
AT&T provides telecommunications services between the United States and Cuba
jointly with Empresa de Telecomunicaciones Internacionales de Cuba
("EMTELCUBA"), the Cuban telephone company, pursuant to all applicable U.S.
laws and regulations. All payments due EMTELCUBA are handled in accordance
with the provisions of the Cuban Assets Control Regulations and the Cuban
Democracy Act of 1992 and specific licenses issued thereunder. AT&T is the
sole owner of the Cuban American Telephone and Telegraph Company ("CATT"), a
Cuban corporation. CATT owns cable facilities between the United States and
Cuba that were activated on November 25, 1994.
This information is accurate as of the date hereof. Current information
concerning AT&T's business dealings with the government of Cuba or with any
person or affiliate located in Cuba may be obtained from the Division of
Securities and Investor Protection of the Florida Department of Banking and
Finance, the Capitol, Tallahassee, Florida 32399-0530, telephone number
(904) 488-9805.
LEGAL OPINIONS
Marilyn J. Wasser, Vice President--Law and Secretary of AT&T, is passing upon
the legality of the Common Shares for the Company. As of November 30, 1994,
Marilyn J. Wasser owned 3,019 common shares of AT&T and had options to
acquire 13,626 common shares of AT&T.
Davis Polk & Wardwell of New York, New York is passing upon the legality of
the Common Shares for the Underwriters. Such firm from time to time acts as
counsel for the Company and its subsidiaries.
Milbank, Tweed, Hadley & McCloy of New York, New York is passing upon the
legality of the Common Shares for the Selling Shareholder.
EXPERTS
The restated consolidated financial statements and restated consolidated
financial statement schedules of AT&T and its subsidiaries at December 31,
1993 and 1992 and for the years ended December 31, 1993, 1992 and 1991,
included in AT&T's Current Report on Form 8-K, dated October 26, 1994, have
been incorporated herein by reference in reliance upon the report of Coopers
& Lybrand L.L.P., independent auditors, which report includes an explanatory
paragraph regarding AT&T's change in 1993 in methods of accounting for
postretirement benefits, postemployment benefits and income taxes, given on
the authority of that firm as experts in accounting and auditing.
<PAGE>
No person has been authorized to give any information or to make any
representations other than those contained in this Prospectus, and, if given
or made, such information or representations must not be relied upon as
having been authorized. This Prospectus does not constitute an offer to sell
or the solicitation of an offer to buy any securities other than the
securities to which it relates or an offer to sell or the solicitation of an
offer to buy such securities in any circumstances in which such offer or
solicitation is unlawful. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, create any implication
that there has been no change in the affairs of the Company since the date
hereof or that the information contained herein is correct as of any time
subsequent to its date.
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
<S> <C>
Available Information 2
Incorporation of Documents by Reference 2
The Company 3
Recent Developments 4
Capitalization 6
Selected Financial Data 7
Selling Shareholder 8
Description of Common Shares of AT&T 8
Price Range of Common Shares and Dividends 8
Underwriting 9
For Florida Residents 10
Legal Opinions 10
Experts 10
</TABLE>
35,859,199 Shares
AT&T Corp.
Common Shares
(par value $1.00 per share)
[AT&T LOGO]
Goldman, Sachs & Co.
Morgan Stanley & Co.
Incorporated
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<CAPTION>
<S> <C>
Securities and Exchange Commission Filing Fee $590,445
Printing and Distributing Prospectus and Miscellaneous Material 125,000*
Accountants' Fee 15,000*
Blue Sky Fees and Expenses 15,000*
Miscellaneous Expenses 4,555*
Total $750,000*
</TABLE>
* Estimated
The Selling Shareholder bears no portion of the expenses listed above.
Item 15. Indemnification of Directors and Officers.
Pursuant to the statutes of the State of New York, a director or officer of a
corporation is entitled, under specified circumstances, to indemnification by
the corporation against reasonable expenses, including attorney's fees,
incurred by him in connection with the defense of a civil or criminal
proceeding to which he has been made, or threatened to be made, a party by
reason of the fact that he was such director or officer. In certain
circumstances, indemnity is provided against judgments, fines and amounts
paid in settlement. In general, indemnification is available where the
director or officer acted in good faith, for a purpose he reasonably believed
to be in the best interests of the corporation. Specific court approval is
required in some cases. The foregoing statement is subject to the detailed
provisions of Sections 715, 717 and 721-725 of the New York Business
Corporation Law ("BCL").
The AT&T By-laws provide that AT&T is authorized, by (i) a resolution of
shareholders, (ii) a resolution of directors or (iii) an agreement providing
for such indemnification, to the fullest extent permitted by applicable law,
to provide indemnification and to advance expenses to directors and officers
in respect of claims, actions, suits or proceedings based upon, arising from,
relating to or by reason of the fact that any such director or officer serves
or served in such capacity with AT&T or at the request of AT&T in any
capacity with any other enterprise.
AT&T has entered into contracts with its officers and directors, pursuant to
the provisions of BCL Section 721, by which it will be obligated to indemnify
such persons, to the fullest extent permitted by the BCL, against expenses,
fees, judgments, fines and amounts paid in settlement in connection with any
present or future threatened, pending or completed action, suit or proceeding
based in any way upon or related to the fact that such person was an officer
or director of AT&T or, at the request of AT&T, an officer, director or other
partner, agent, employee or trustee of another enterprise. The contractual
indemnification so provided will not extend to any situation where a judgment
or other final adjudication adverse to such person establishes that his acts
were committed in bad faith or were the result of active and deliberate
dishonesty or that there inured to such person a financial profit or other
advantage.
The directors and officers of AT&T are covered by insurance policies
indemnifying against certain liabilities, including certain liabilities
arising under the Securities Act of 1933, which might be incurred by them in
such capacities and against which they cannot be indemnified by the
registrant.
Any underwriters who execute the agreement filed as Exhibit 1 to this
registration statement will agree to indemnify the registrant and
registrant's directors and its officers who signed the registration statement
against certain liabilities which might arise under the Securities Act of
1933 from information furnished to the registrant by or on behalf of any such
indemnifying party.
<PAGE>
Item 16. Exhibits.
The exhibits identified in parentheses below, on file with the SEC, are
incorporated herein by reference as exhibits hereto.
<TABLE>
<CAPTION>
Exhibit
Number
<S> <C>
1 Form of Underwriting Agreement
4 Restated Certificate of Incorporation of the registrant filed January
10, 1989, Certificate of Change to Restated Certificate of
Incorporation dated March 18, 1992, Certificate of Amendment to
Restated Certificate of Incorporation dated June 1, 1992, and
Certificate of Amendment of the Certificate of Incorporation dated
April 20, 1994 (Exhibit 4-B to Registration Statement No. 33-53765).
5 Opinion of Marilyn J. Wasser, Vice President--Law and Secretary of the
registrant, as to the legality of the securities being registered.
23A Consent of Coopers & Lybrand.
23B Consent of Marilyn J. Wasser, Vice President--Law and Secretary of the
registrant, is contained in opinion of counsel filed as Exhibit 5.
24 Powers of Attorney executed by the directors and officers who signed
this registration statement.
</TABLE>
Item 17. Undertakings.
The undersigned registrant hereby undertakes:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of a
registration statement in reliance upon Rule 430A and contained in the form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of the
registration statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) That, for purposes of determining any liability under the Securities Act
of 1933, each filing of the registrant's annual report pursuant to section
13(a) or section 15(d) of the Securities Exchange Act of 1934 that is
incorporated by reference in this registration statement shall be deemed to
be a new registration statement relating to the securities offered herein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors and officers of the registrant pursuant
to the provisions referred to in the first, second, third and fifth
paragraphs of Item 15 above or otherwise, the registrant has been advised
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and is,
therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of
expenses incurred or paid by a director or officer of the registrant in the
successful defense of any action, suit or proceeding) is asserted against the
registrant by such director or officer in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Act and will be governed by the
final adjudication of such issue.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this registration
statement or amendment thereto to be signed on its behalf by the undersigned,
thereunto duly authorized, in The City of New York, State of New York, on the
7th day of December, 1994.
AT&T CORP.
By: (S.L. Prendergast
Vice President and Treasurer)
Pursuant to the requirements of the Securities Act of 1933, this
registration statement or amendment thereto has been signed below by the
following persons in the capacities and on the date indicated.
Principal Executive Officer:
R.E. Allen *
Chairman of the Board *
*
Principal Financial Officer: *
R.W. Miller *
Executive Vice President *
and Chief Financial Officer *
*
Principal Accounting Officer: *
M.B. Tart *
Vice President *
and Controller * By: (S.L. Prendergast
* attorney-in-fact)*
*
* December 7, 1994
*
Directors: *
*
R.E. Allen *
M. Kathryn Eickhoff *
Philip M. Hawley *
Drew Lewis *
Victor A. Pelson *
Donald S. Perkins *
Henry B. Schacht *
Franklin A. Thomas *
Joseph D. Williams *
Thomas H. Wyman *
* * by power of attorney
<PAGE>
EXHIBIT INDEX
Exhibits identified in parentheses below, on file with the SEC, are
incorporated herein by reference as exhibits hereto.
<TABLE>
<CAPTION>
Exhibit
Number
<S> <C>
1 Form of Underwriting Agreement
4 Restated Certificate of Incorporation of the registrant filed January
10, 1989, Certificate of Change to Restated Certificate of
Incorporation dated March 18, 1992, Certificate of Amendment to
Restated Certificate of Incorporation dated June 1, 1992, and
Certificate of Amendment of the Certificate of Incorporation dated
April 20, 1994 (Exhibit 4-B to Registration Statement No. 33-53765).
5 Opinion of Marilyn J. Wasser, Vice President--Law and Secretary of the
registrant, as to the legality of the securities being registered.
23A Consent of Coopers & Lybrand.
23B Consent of Marilyn J. Wasser, Vice President--Law and Secretary of the
registrant, is contained in opinion of counsel filed as Exhibit 5.
24 Powers of Attorney executed by the directors and officers who signed
this registration statement.
</TABLE>
Exhibit 1
35,859,199 SHARES
AT&T CORP.
COMMON SHARES
($1.00 par value)
FORM OF UNDERWRITING AGREEMENT
, 1994
<PAGE>
, 1994
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
New York, New York 10020
As Representatives of the Several Underwriters Named in Schedule I hereof
Dear Sirs:
The undersigned, AT&T Corp., a New York corporation (the "Company"), and BT
USA Holdings, Inc., a Delaware corporation ("BT"), hereby confirm their
respective agreements with the several Underwriters, named in Schedule I
hereof, as follows:
1. Underwriters and Representatives. The term "Underwriters" as used herein
shall mean the several persons, firms and corporations named in Schedule I
hereof, and the term "Underwriter" shall mean any one of such persons, firms
or corporations. The terms "Underwriters," "persons," "firms" and
"corporations" as used herein shall include the singular of such terms as
well as the plural. The term "Representatives" shall mean the representatives
to whom this Agreement is addressed, who, by signing this Agreement represent
that they have been authorized by each Underwriter to execute this Agreement
on behalf of such Underwriter and to act for such Underwriter in the manner
herein provided. All obligations of the Underwriters hereunder are several
and not joint.
2. Description of Securities. BT proposes to sell to the Underwriters an
aggregate of 35,859,199 currently outstanding common shares (par value $1.00
per share) (the "Shares") of the Company. The outstanding common shares of
the Company (including the Shares) are hereinafter referred to as the Common
Shares.
3. Representations and Warranties of the Company. The Company represents
and warrants to BT and the several Underwriters that:
(a) The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement No. 33- on Form S-3 including a
prospectus relating to the Shares, which has become effective under the
Securities Act of 1933, as amended (the "Act"). The term "Registration
Statement" means the Registration Statement as amended to the date hereof
including the information, if any, deemed to be part of the Registration
Statement at the time of effectiveness pursuant to Rule 430A under the Act,
and the term "Prospectus" means the prospectus in the form first used to
confirm sales of the Shares. The term "preliminary prospectus" means any
preliminary prospectus relating to the Shares used prior to the effectiveness
of the Registration Statement. As used herein, Registration Statement,
Prospectus and preliminary prospectus shall include in each case the
material, if any, incorporated by reference therein.
(b) (i) Each part of the Registration Statement (including the material
incorporated by reference therein) when such part became effective, did not
contain any untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading, (ii) each preliminary prospectus relating to the
Shares, if any, complied when so filed in all material respects with the Act
and the applicable rules and regulations of the Commission thereunder, (iii)
the Registration Statement and the Prospectus comply and, as amended or
supplemented, if applicable, will comply in all material respects with the
Act and the applicable rules and regulations of the Commission thereunder and
(iv) the Registration Statement and the Prospectus do not and, as amended or
supplemented, if applicable, will not contain any untrue statement of a
material fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading; provided, however, that the Company makes no
representations or warranties as to the information contained in or omitted
from the Registration Statement, any preliminary prospectus or the Prospectus
in reliance upon written information furnished to the Company by or on behalf
of BT or any Underwriter expressly for use in connection with the preparation
of any preliminary prospectus, the Registration Statement or the Prospectus
or any amendment or supplement thereof.
(c) Each document incorporated by reference in the Prospectus complied when
filed with the Commission in all material respects with the provisions of the
Securities Exchange Act of 1934, as amended (the "Exchange
<PAGE>
Act"), together with the applicable instructions, rules and regulations of
the Commission thereunder, and each document, if any, hereafter filed under
the Exchange Act and so incorporated by reference in the Prospectus will
comply when so filed in all material respects with the requirements of such
Exchange Act, instructions, rules and regulations.
(d) The accountants who have certified or shall certify the financial
statements filed and to be filed with the Commission as parts of the
Registration Statement and the Prospectus are public or certified
accountants, independent with respect to the Company, as required by the Act
and the Exchange Act and the rules and regulations of the Commission
thereunder.
(e) The sale of the Shares by BT, the performance of the Company's
obligations hereunder and the consummation of the transactions herein
contemplated will not result in a breach of any of the terms and provisions
of, or constitute a default under, any indenture, mortgage, deed of trust or
other agreement or instrument to which the Company is a party or by which it
is bound, or the Company's certificate of incorporation or by-laws; or, to
the best of its knowledge, any order, rule or regulation applicable to the
Company of any court, federal or state regulatory body, administrative agency
or other governmental body having jurisdiction over the Company or its
properties.
4. Representations and Warranties of BT. BT represents and warrants to the
Company and the several Underwriters that:
(a) BT has good and valid title to the Shares, free and clear of all liens,
encumbrances, equities or claims.
(b) To the extent that any statements or omissions made in the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement thereto are made in reliance upon and in conformity with written
information furnished to the Company by BT expressly for use therein, such
preliminary prospectus and the Registration Statement did, and the Prospectus
and any further amendments or supplements to the Registration Statement and
the Prospectus will, when they become effective or are filed with the
Commission, as the case may be, not contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading.
5. Purchase and Sale of Shares. On the basis of the representations and
warranties of the Company and BT and on the terms and subject to the
conditions herein set forth, each of the Underwriters agrees, severally and
not jointly, to purchase from BT, and on the basis of the representations and
warranties of the Company and on the terms and subject to the conditions
herein set forth, BT agrees to sell to each of the Underwriters, severally
and not jointly, the number of Shares set forth opposite its name in Schedule
I hereof at a price of $ per Share--the "purchase price."
6. Closing. Delivery of, and payment of the purchase price for, the Shares
shall be made at the office of Davis Polk & Wardwell, counsel for the
Underwriters, 450 Lexington Avenue, New York, New York at 10:00 A.M. on
, 1994, or at such other place or time on the same or such other day
as shall be agreed upon by the Company, BT and the Representatives. The time
and date for such payment and delivery are herein referred to as the "time of
closing". At the time of closing, the Company, on behalf of BT, will deliver
certificates in definitive form for the Shares, registered in such names and
in such authorized denominations as the Representatives shall have specified
not less than two business days prior to the day of closing, against payment
therefor as provided in Section 7 hereof, to the Representatives for the
respective accounts of the Underwriters.
The Company and BT agree to make such certificates available to the
Representatives for examination on behalf of the Underwriters at the office
of the [transfer agent], [ ], New York, New York, not later than 2:00
P.M. on the business day next preceding the day of closing.
If, at the time of closing, for any reason (other than termination of this
Agreement in accordance with the provisions of Section 10, 11 or 15 hereof)
one or more of the Underwriters shall fail or refuse to pay for Shares it has
or they have agreed to purchase at such time (any such Underwriting being
hereinafter referred to as a "defaulting Underwriter") and the aggregate
number of Shares which such defaulting Underwriter or Underwriters agreed but
failed or refused to purchase is not more than one-tenth of the aggregate
number of Shares to be purchased at such time, the remaining Underwriters
shall be obligated severally in the proportion which the number of Shares set
forth opposite their names in Schedule I of this Agreement bears to the
aggregate number of Shares set forth opposite the names of all such
non-defaulting Underwriters
<PAGE>
(or in such other proportion as the Representatives shall specify) to
purchase the Shares which the defaulting Underwriter or Underwriters agreed
but failed or refused to purchase; provided that in no event shall the number
of Shares that any Underwriter is obligated to purchase be increased pursuant
to the provisions of this paragraph by more than one-ninth of the number of
Shares such Underwriter has agreed to purchase at such time pursuant to
Section 5 hereof without the written consent of such Underwriter. In the
event that any defaulting Underwriter or Underwriters shall fail or refuse to
purchase Shares the aggregate number of which is more than one-tenth of the
aggregate number of Shares, and if arrangements satisfactory to the
Representatives and BT for the purchase of all such Shares are not made
within two business days after such default, this Agreement will terminate
without liability on the part of any of the non-defaulting Underwriters, of
the Company or of BT. In the event that the non-defaulting Underwriters agree
to purchase, in accordance with this paragraph, all the Shares which the
defaulting Underwriter or Underwriters fail or refuse to purchase, the
Representatives, BT or the Company shall have the right to postpone the time
of closing, but in no event longer than five business days, in order that the
required changes, if any, in the Registration Statement and in the Prospectus
or in any other documents or arrangements may be effected. Except to the
extent provided in subparagraphs (d) and (e) of Section 8 hereof and in
Section 12 hereof, such termination of this Agreement shall be without any
liability on the part of the Company, BT or any Underwriter other than a
defaulting Underwriter which shall have failed, otherwise than for some
reason sufficient to justify under the terms hereof the cancellation or
termination of its obligations hereunder, to pay for the Shares which such
Underwriter has agreed to purchase (any such failure or refusal being
hereinafter referred to as a "default"). Unless this Agreement is terminated
in accordance with any of its provisions, a default by one or more of the
Underwriters shall not relieve any other Underwriter from its obligation to
purchase the Shares which it has agreed to purchase.
7. Payment. At the time of closing, BT will cause the Shares to be
delivered to the Representatives for the account of each Underwriter against
payment of the purchase price of such Shares by certified or official bank
check or checks payable to the order of BT in New York Clearing House or
other next day funds.
8. Covenants of the Company. The Company covenants and agrees with BT and
the several Underwriters as follows:
(a) The Company will not file any amendment or supplement to the
Registration Statement or the Prospectus of which BT and the Representatives
shall not previously have been advised or which shall be disapproved by Davis
Polk & Wardwell, counsel for the Underwriters, or Milbank, Tweed, Hadley &
McCloy, counsel for BT, and will not file any document pursuant to the
Exchange Act which is deemed to be incorporated by reference in the
Prospectus of which BT, Milbank, Tweed, Hadley & McCloy and Davis Polk &
Wardwell shall not previously have been advised.
(b) The Company will deliver to BT and the Representatives a reasonable
number of copies of the registration statement as originally filed (including
all exhibits and documents incorporated by reference therein) and of all
amendments thereto up to the time of closing. Promptly upon the filing with
the Commission of any amendment to the Registration Statement or of any
supplement to or amendment of the Prospectus, the Company will deliver to BT
and the Representatives a reasonable number of copies thereof. The terms
"supplement" and "amendment" or "amend", as used in this Agreement, shall
include all documents filed by the Company with the Commission subsequent to
the date of the Prospectus, pursuant to the Exchange Act which are deemed to
be incorporated by reference in the Prospectus.
(c) The Company will advise BT and the Representatives promptly (confirming
such advice in writing) of any official request made by the Commission for an
amendment to the Registration Statement or Prospectus or for additional
information with respect thereto and of any official notice of the
institution of proceedings for, or of the entry of, a stop order suspending
the effectiveness of the Registration Statement. The Company will use its
best efforts to prevent the issuance of any such stop order, and, if such a
stop order should be entered, the Company will make every reasonable effort
to obtain the lifting or removal thereof as soon as possible.
(d) The Company will pay all expenses in connection with the preparation and
filing of the Registration Statement, the delivery of the Shares and the
printing of the copies of any preliminary prospectus and of the Prospectus to
be furnished as provided in the first sentence of subparagraph (g) below, but
will not pay any transfer taxes. The Company will not be required to pay any
amount for any expenses of the Representatives or any of the Underwriters, or
of BT (which expenses, in the case of BT, will be paid by BT and will be
limited to fees and disbursements of counsel retained by BT, costs of
insurance in connection with the registration of the Shares, underwriting
discounts and commissions, and transfer taxes, if any, relating to the sale of
the Shares to the several
<PAGE>
Underwriters as contemplated by this Agreement), except the cost of mailing to
BT and the Underwriters of copies of the Registration Statement and all
amendments thereto (including documents incorporated by reference), the
preliminary prospectuses and the Prospectus, and except as provided by
subparagraph (e) below. It is understood that, except as provided in
subparagraphs (e) and (f) below and Section 12 hereof, the Underwriters will
pay all of their own expenses including the fees of their counsel, transfer
taxes on the resale of any of the Shares by them, and any advertising expenses
connected with any offers they may make. The Company and BT will not in any
event be liable to any of the several Underwriters for damages on account of
loss of anticipated profits.
(e) The Company will use its best efforts to qualify the Shares, or to
assist in the qualification of the Shares by or on behalf of the
Representatives, for offer and sale under the securities or Blue Sky laws of
such jurisdictions as the Representatives or BT may designate, will comply
with such laws so as to permit the continuance of sales and dealings therein
in such jurisdictions for as long as may be necessary to complete the
distribution of the Shares and will pay or reimburse the Representatives for
counsel fees, filing fees and out-of-pocket expenses in connection with such
qualification; provided that the Company shall not be required to qualify as
a foreign corporation or to file a general consent to service of process in
any jurisdiction, or to pay or to incur, or to reimburse the Representatives
for, any such expenses if no Shares are delivered to and purchased by the
Underwriters hereunder because of a default by one or more of the
Underwriters or the termination of this Agreement pursuant to Section 15
hereof.
(f) The Company will furnish to BT and to the Representatives or to the
respective Underwriters as many copies of the Prospectus as BT, on the one
hand, may reasonably request, and the Representatives or the respective
Underwriters, on the other hand, may reasonably request for the purposes
contemplated by the Act, provided, as to copies of the Prospectus to be
provided to the Representatives or the respective Underwriters, Davis Polk &
Wardwell is of the opinion that the Prospectus is required by law to be
delivered in connection with sales by such an Underwriter or a dealer. If,
during such period as in the opinion of Davis Polk & Wardwell the Prospectus
is required by law to be delivered in connection with sales by an underwriter
or dealer, any event shall occur which should be set forth in a supplement to
or an amendment of the Prospectus in order to make the Prospectus not
misleading, the Company will, upon the occurrence of each such event
forthwith at its expense, notify BT and the Representatives of the happening
of such event and either (i) prepare and furnish to BT and to the
Representatives or to the respective Underwriters as many copies as BT and
the Representatives or the respective Underwriters may reasonably request for
the purposes contemplated by the Act of a supplement to or amendment of the
Prospectus which will supplement or amend the Prospectus or (ii) file with
the Commission documents deemed incorporated by reference in the Prospectus,
in either case so that as supplemented or amended, it will not at the date of
such supplement or amendment contain any untrue statement of a material fact
or omit to state any material fact required to be stated therein or necessary
in order to make the statements therein not misleading. For the purpose of
this subparagraph (f) the Company will furnish such reasonable information
with respect to itself as BT or the Representatives may from time to time
request, and, if in the opinion of counsel for BT or the Representatives,
respectively, it is necessary to the conducting of a reasonable investigation
within the meaning of the Act, BT or the Representatives, each at its own
expense, may visit any of the properties of the Company and may inspect the
books of account of the Company at any reasonable time. Notwithstanding any
of the other provisions of this subparagraph (f), the Company shall not be
under any obligation to furnish any supplement to or amendment of the
Prospectus on account of any change in, or to include in any amended
prospectus any change in, the information furnished to the Company by BT or
by any Underwriter or Underwriters or by the Representatives on its or their
behalf for use in the Prospectus, unless BT or the Representatives, have
advised the Company in writing of such change and have requested the Company
at the Company's expense, with respect to information furnished to the
Company by BT, or at the expense of such Underwriter or Underwriters, with
respect to information provided to the Company by the Underwriters, to
prepare a supplement to or amendment of the Prospectus to reflect such change
or to include such change in an amended prospectus.
(g) The Company will cause to be made generally available to its security
holders as soon as practicable, but in any event not later than eighteen
months after the effective date of the Registration Statement, an earnings
statement or statements which shall meet the requirements of Section 11(a) of
the Act and Rule 158 promulgated thereunder.
[(h) Until 90 days following the date hereof, the Company will not, without
the written consent of the Representatives, offer, sell, contract to sell or
announce the offering of, any Common Shares or securities of the Company that
are substantially similar to the Common Shares, including but not limited to
any securities that are convertible into or exchangeable for, or that
represent the right to receive, any Common Shares or such substantially
<PAGE>
similar securities (other than (1) Common Shares issued pursuant to
shareowner or employee benefit plans of the Company existing on, or upon the
conversion or exchange of convertible or exchangeable securities outstanding
as of, the date hereof and (2) contracts to sell, or announcements of
offerings, in either case, in connection with acquisitions by the Company
which sales or offerings will not be completed until at least 90 days
following the date hereof).]
9. Covenants of BT. BT covenants and agrees with the Company and the
several Underwriters as follows:
(a) BT will pay or cause to be paid, or will reimburse the Company or the
Representatives for, all transfer, stamp, documentary or similar taxes, if
any, on the transfer and sale, respectively, of the Shares to the Underwriters
by BT.
(b) BT agrees that if, during any period referred to in subparagraph (f) of
Section 8, the information in writing regarding BT furnished to the Company
expressly for use in the Prospectus shall require revision to make such
information, as it appears in the Prospectus, not misleading, BT shall
forthwith notify the Company and the Representatives of the changes that need
to be made in the information supplied and shall cooperate with the Company
and the Representatives in preparing amendments to or supplements of the
Prospectus so that, as amended or supplemented, such information will not at
the date of such amendment or supplement contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein not misleading.
(c) Until 90 days following the date hereof, BT will not, without the
consent of the Representatives, offer, sell, contract to sell or announce
the offering of, any Common Shares.
10. Conditions of the Obligations of the Underwriters. The obligations of
the Underwriters to purchase and pay for the Shares shall be subject to the
following additional conditions:
(a) At the time of closing no stop order suspending the effectiveness of
the Registration Statement, as amended from time to time, shall be in effect,
no proceedings for that purpose shall be pending before, or threatened by,
the Commission, and BT and the Representatives shall have received a
certificate, dated the day of the closing and signed by a Vice President or
the Treasurer of the Company to the effect that no such stop order is in
effect and, to the knowledge of the Company, no proceedings for such purpose
are pending before or threatened by the Commission.
(b) At or prior to the time of closing, the Representatives shall have
received from counsel for the Company an opinion, satisfactory to Davis Polk
& Wardwell, to the effect that--
(i) the Company is a corporation in good standing, duly organized and
validly existing under the laws of the State of New York and is authorized by
its certificate of incorporation to transact the business in which it is
engaged, as set forth in the Prospectus;
(ii) the Company is duly qualified to transact the business in which it
is engaged, as set forth in the Prospectus, in each state in which it
operates;
(iii) all the Shares have been duly authorized by proper corporate
proceedings and are validly issued, fully paid, non-assessable and free of
preemptive rights;
(iv) this Agreement has been duly authorized, executed and delivered on
behalf of the Company and is valid and binding on the Company, except as
rights to indemnity and contribution hereunder may be limited under
applicable law;
(v) all consents, approvals, authorizations or other orders of regulatory
authorities legally required for the sale of the Shares to the Underwriters
pursuant to the terms of this Agreement, have been obtained; and
(vi) except as to financial statements and schedules contained or
incorporated by reference therein, which such opinion need not pass upon, (A)
each document or portion thereof incorporated by reference in the Prospectus
complied when filed with the Commission as to form in all material respects
with the requirements of the Exchange Act, together with the applicable
instructions, rules and regulations of the Commission thereunder, (B) each
part of the Registration Statement when it became effective complied as
<PAGE>
to form in all material respects with the requirements of the Act and the
applicable instructions, rules and regulations of the Commission thereunder
and (C) the Registration Statement and the Prospectus, as amended or
supplemented, if applicable, comply, and at the date hereof complied, as to
form in all material respects with the requirements of the Act and the
applicable instructions, rules and regulations of the Commission thereunder.
(c) At or prior to the time of closing, the Representatives shall have
received from Milbank, Tweed, Hadley & McCloy an opinion, satisfactory to
Davis Polk & Wardwell, to the effect that--
(i) BT is a corporation in good standing and validly existing under the
laws of the State of Delaware;
(ii) this Agreement has been duly authorized, executed and delivered by
BT;
(iii) immediately prior to the time of delivery, BT has good and valid
title to the Shares, free and clear of all liens, encumbrances, equities or
claims, and has full right, power and authority to sell, transfer and deliver
the Shares in the manner provided by this Agreement;
(iv) good and valid title to the Shares, free and clear of all liens,
encumbrances, equities or claims, has been transferred to each of the several
Underwriters who have purchased the Shares in good faith and without notice
of any such lien, encumbrance, equity or claim or any other adverse claim
within the meaning of the Uniform Commercial Code; and
(v) no consent, approval, authorization or order of any court or
governmental agency or body is required for the sale, transfer and delivery
of the Shares hereunder, except such as have been obtained under the Act and
such as may be required under state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Shares by the
Underwriters.
(d) At the date hereof and at or prior to the time of closing the
Representatives shall have received from Davis Polk & Wardwell, counsel to
the Underwriters, an opinion to the effect specified in clauses (i), (iii),
(iv) and (vi)(B) and (C) of subparagraph (b) above.
(e) Except as reflected in or contemplated by the Registration Statement
and the Prospectus, since the respective dates as of which information is
given in the Registration Statement and the Prospectus, there shall not have
been, at the time of closing, any material adverse change, financial or
otherwise, in the condition of the Company from that set forth in the
Registration Statement and the Prospectus; the representations and warranties
of the Company herein shall be true at the time of closing; the Company shall
not have failed, at or prior to the time of closing, to have performed all
agreements herein contained which should have been performed by it at or
prior to such time; and BT and the Representatives shall have received at the
time of closing, a certificate to the foregoing effect dated the day of the
closing and signed by a Vice President or the Treasurer of the Company.
(f) The representations and warranties of BT herein shall be true at the
time of closing; BT shall not have failed, at or prior to the time of
closing, to have performed all agreements herein contained which should have
been performed by it at or prior to such time; and the Representatives shall
have received at the time of closing a certificate to the foregoing effect
dated the day of the closing and signed by the Chairman of the Board, the
President, an Executive, Senior or Corporate Vice President or the Secretary
of BT.
(g) At the date hereof and at or prior to the time of closing, BT and the
Representatives each shall have received an executed copy of a letter of
Coopers & Lybrand addressed to the Company, to BT and to the Representatives,
to the effect that (i) they are independent public accountants as required by
the Act and the applicable published rules and regulations of the Commission
thereunder; (ii) the audited financial statements contained or incorporated
by reference in the Registration Statement, as amended or supplemented from
time to time, comply as to form in all material respects with the applicable
accounting requirements of the Exchange Act and the applicable published
rules and regulations of the Commission thereunder; and (iii) nothing has
come to their attention as the result of specified procedures not
constituting an audit that caused them to believe (A) that the unaudited
financial statements, if any, contained in or incorporated by reference as
aforesaid, do not so comply and are not fairly presented in conformity with
generally accepted accounting principles applied on a basis substantially
consistent with that of the audited financial statements contained as
aforesaid, (B) that there was any change in the capital stock or long or
intermediate term debt of the Company, or any decrease in net assets [or
shareholders' equity], from the date of the latest balance sheet which is
contained in or incorporated by reference as aforesaid,
<PAGE>
to a date not more than five days prior to the date of such letter or (C) that
there were any decreases, as compared with the corresponding period in the
preceding year, in total revenues, operating income or net income from the
date of the latest figures for such items contained in the Registration
Statement to the date of the latest available financial statements of the
Company; provided that, with respect to any of the items specified in clause
(iii), such letter may contain an exception for matters which the Registration
Statement discloses have occurred or may occur; and provided further, that the
letter may vary from the requirements specified in this paragraph in such
manner as BT and the Representatives in their sole discretion may determine to
be immaterial or in such manner as may be acceptable to BT and the
Representatives.
In case any of the conditions specified above in this Section 10 shall not
have been fulfilled, this Agreement may be terminated by the Representatives
by delivering written notice of termination to the Company and BT. Any such
termination shall be without liability of any party to any other party except
to the extent provided in Section 12 and subparagraphs (d) and (e) of Section
8 hereof.
11. Conditions of the Obligation of BT. The obligation of BT to deliver the
Shares upon payment therefor shall be subject to the following conditions:
(a) The conditions set forth in Section 10(a) hereof shall have been met.
(b) At or prior to the time of closing, BT shall have received from counsel
for the Company an opinion, satisfactory to Milbank, Tweed, Hadley & McCloy,
to the effect set forth in Section 10(b) hereof.
(c) At or prior to the time of closing, BT shall have received from
Milbank, Tweed, Hadley & McCloy an opinion satisfactory to BT.
(d) The conditions set forth in Section 10(e) hereof shall have been met.
(e) At the date hereof and at or prior to the time of closing, BT shall
have received an executed copy of a letter of Coopers & Lybrand addressed to
the Company, to BT and to the Representatives to the effect set forth in
Section 10(g) hereof.
In case any of the conditions specified above in this Section 11 shall not
have been fulfilled, this Agreement may be terminated by BT by delivering
written notice of termination to the Representatives and the Company. Any
such termination shall be without liability of any party to any other party
except to the extent provided in Section 12 and subparagraphs (d) and (e) of
Section 8 hereof.
12. Indemnification and Contribution. (a) The Company agrees to indemnify
and hold BT, BT's officers and directors, each Underwriter, and each person,
if any, who controls BT or any Underwriter within the meaning of Section 15
of the Act or Section 20 of the Exchange Act, harmless from and against any
and all losses, claims, damages or liabilities, joint or several, with
respect to the Shares or any other securities of the Company insofar as such
losses, claims, damages or liabilities (or actions or proceedings, whether
commenced or threatened, in respect thereof) arise because the Registration
Statement, any preliminary prospectus used in connection with the offering of
the Shares or the Prospectus (if used within the period set forth in the
first sentence of subparagraph (f) of Section 8 hereof and if used as amended
or supplemented by all amendments or supplements thereto which have been
furnished to BT or to the Representatives or to such Underwriter) contained
or is alleged to have contained any untrue statement of a material fact or
omitted or is alleged to have omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
except as to losses, claims, damages or liabilities caused by any such untrue
statement or omission or alleged untrue statement or omission made in
reliance upon information furnished to the Company in writing by or on behalf
of BT or any Underwriter expressly for use in connection with the preparation
of any preliminary prospectus, the Registration Statement or the Prospectus
or any amendment or supplement thereof; provided that the indemnity agreement
with respect to any preliminary prospectus shall not inure to the benefit of
any Underwriter (or to the benefit of any person controlling such
Underwriter) on account of any losses, claims, damages or liabilities arising
from the sale of Shares to any person if a copy of the Prospectus (as amended
or supplemented by all amendments or supplements thereto which have been
furnished to the Representatives or to such Underwriter, but without
documents incorporated by reference therein or exhibits) shall not have been
sent, mailed or given to such person, if required by the Act, at or prior to
the written confirmation of the sale of such Shares to such person and if the
Prospectus (as so amended or supplemented) would have cured the defect giving
rise to such losses, claims, damages or liabilities.
(b) BT agrees to indemnify and hold the Company, its directors, its
officers who sign the registration statement, and each Underwriter, and each
person, if any, who controls the Company or any Underwriter within the
meaning
<PAGE>
of Section 15 of the Act or Section 20 of the Exchange Act, harmless from and
against any and all losses, claims, damages and liabilities with respect to
the Shares of the Company insofar as such losses, claims, damages or
liabilities (or actions or proceedings, whether commenced or threatened, in
respect thereof) arise because the Registration Statement, any preliminary
prospectus used in connection with the offering of the Shares or the
Prospectus (if used within the period set forth in the first sentence of
subparagraph (f) of Section 8 hereof and if used as amended or supplemented
by all amendments or supplements thereto which have been furnished to the
Representatives or to such Underwriter) contained or is alleged to have
contained any untrue statement of a material fact or omitted or is alleged to
have omitted to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, which untrue
statement or omission or alleged untrue statement or omission was made in any
preliminary prospectus or the Registration Statement or Prospectus or any
amendment or supplement thereto in reliance upon information furnished in
writing by or on behalf of BT expressly for use in connection with the
preparation thereof; provided that the indemnity agreement with respect to
any preliminary prospectus shall not inure to the benefit of any Underwriter
(or to the benefit of any person controlling such Underwriter) on account of
any losses, claims, damages or liabilities arising from the sale of Shares to
any person if a copy of the Prospectus (as amended or supplemented by all
amendments or supplements thereto which have been furnished to the
Representatives [or to such Underwriter], but without documents incorporated
by reference therein or exhibits) shall not have been sent, mailed or given
to such person, if required by the Act, at or prior to the written
confirmation of the sale of such Shares to such person and if the Prospectus
(as so amended or supplemented) would have cured the defect giving rise to
such losses, claims, damages or liabilities. Notwithstanding the provisions
of this subparagraph (b), BT shall not be required to indemnify any entity or
person in an amount in excess of the net proceeds received by BT in
connection with the sale of the Shares as set forth herein.
(c) Each Underwriter agrees to indemnify and hold the Company, its
directors, its officers who sign the registration statement, BT, BT's
officers and directors and each person who controls BT or the Company within
the meaning of Section 15 of the Act or Section 20 of the Exchange Act,
harmless from and against any and all losses, claims, damages and liabilities
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise
because the Registration Statement, any preliminary prospectus used in
connection with the offering of the Shares or the Prospectus (or any
amendment or supplement thereto) contained or is alleged to have contained
any untrue statement of a material fact or omitted or is alleged to have
omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading, which untrue statement or
omission or alleged untrue statement or omission was made in any such
preliminary prospectus or in the Registration Statement or Prospectus or any
amendment or supplement thereto in reliance upon information furnished in
writing by or on behalf of such Underwriter for use in connection with the
preparation thereof.
(d) The Company, BT and each Underwriter agree that upon the commencement
of any action against it, the Company's or BT's directors, the Company's
officers who sign the registration statement, BT's officers or any person
controlling the Company, BT or each Underwriter as aforesaid in respect of
which indemnity may be sought on account of any indemnity agreement contained
herein, it will give prompt written notice of the commencement thereof to the
party or parties against whom indemnity shall be sought, but the omission so
to notify such indemnifying party or parties of any such action shall not
relieve such indemnifying party or parties from any liability which it or
they may have to the indemnified party or parties otherwise than on account
of such indemnity agreement, except to the extent that the indemnifying party
is actually prejudiced by such failure to give notice. In case such notice of
any such action shall be so given, such indemnifying party or parties shall
be entitled to participate at its or their own expense in the defense of such
action, or, if it or they so elect, to assume the defense of such action, and
in the latter event such defense shall be conducted by counsel chosen by such
indemnifying party or parties and satisfactory to the indemnified party or
parties who shall be defendant or defendants in such action, and such
defendant or defendants shall bear the fees and expenses of any additional
counsel retained by them; but if the indemnifying party or parties shall not
elect to assume the defense of such action, such indemnifying party or
parties will reimburse such indemnified party or parties for the reasonable
fees and expenses of any counsel retained by them. In the event that the
parties to any such action (including impleaded parties) include both the
indemnifying party and the indemnified parties and (i) the indemnifying party
or parties and indemnified party or parties mutually agree, (ii)
representation of both the indemnifying party or parties and the indemnified
party or parties by the same counsel is inappropriate under applicable
standards of professional conduct due to actual or potential differing
interests between them or (iii) in the indemnified party's reasonable
judgment a conflict of interest between the indemnified party or parties and
the indemnifying party or parties may exist, then the indemnifying party or
parties shall not have the right to assume the defense of such action on
behalf
<PAGE>
of such indemnified party or parties and will reimburse such indemnified
party or parties for the reasonable fees and expenses of any counsel retained
by them and satisfactory to the indemnifying party or parties, it being
understood that the indemnifying party or parties shall not, in connection
with any one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys for all such indemnified parties, which firm shall be designated in
writing by the Representatives in the case of an action in which one or more
Underwriters or controlling persons are indemnified parties and by the
Company in the case of an action in which the Company or any of its
directors, officers or controlling persons are indemnified parties and by BT
in the case of an action in which BT or any of its directors, officers or
controlling persons are indemnified parties. The indemnifying party or
parties shall not be liable under this Agreement with respect to any
settlement made by any indemnified party or parties without prior written
consent by the indemnifying party or parties to such settlement.
(e) If the indemnification provided for Underwriters and persons
controlling Underwriters in subparagraph (a) of this Section 12 is
unavailable to an indemnified party in respect of any losses, claims, damages
or liabilities referred to therein, then the indemnifying party under such
paragraph, in lieu of indemnifying such indemnified party thereunder, shall
contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities in such proportion as
is appropriate to reflect primarily the relative benefits received by the
Company and BT on the one hand and the Underwriters on the other from the
offering of the Shares and also to reflect where appropriate the relative
fault of the Company and BT on the one hand and of the Underwriters on the
other in connection with the statements or omissions or alleged statements or
omissions which resulted in such losses, claims, damages or liabilities, as
well as any other relevant equitable considerations. The relative fault of
the Company and BT on the one hand, and of the Underwriters on the other
shall be determined by reference to, among other things, whether the untrue
or alleged untrue statement of a material fact or the omission or alleged
omission to state a material fact relates to information supplied by the
Company or BT on the one hand or by the Underwriters on the other and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contribution
pursuant to this subparagraph (e) were determined by pro rata allocation
(even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable
considerations referred to above in this subparagraph (e). The amount paid or
payable by an indemnified party as a result of the losses, claims, damages or
liabilities referred to in this subparagraph (e) shall be deemed to include,
subject to the limitations set forth above in this Section 12, any legal or
other expenses reasonably incurred by such indemnified party in connection
with defending any such action or claim. Notwithstanding the provisions of
this subparagraph (e), no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price at which the Shares
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has been required to
pay, otherwise than pursuant to this subparagraph (e), by reason of such
untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f)
of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. Each Underwriter's obligation to
contribute pursuant to this subparagraph (e) is several in an amount which
shall bear the same proportion as the number of Shares set forth opposite the
name of such Underwriter in Schedule I hereto (plus any increase in such
amount as may be required pursuant to Section 6) bears to the total number of
Shares sold hereunder.
(f) If the indemnification provided for BT, the Company, the Company's or
BT's directors, the Company's officers who sign the registration statement,
BT's officers and persons controlling BT or the Company in subparagraphs (a)
or (b) of this Section 12 is unavailable to an indemnified party in respect
of any losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraphs, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable
by such indemnified party as a result of such losses, claims, damages or
liabilities in accordance with Section 7(f) of the Registration Rights
Agreement dated as of September 19, 1994, between BT and the Company (the
"Registration Rights Agreement"). Notwithstanding the provisions of this
subparagraph (f) and of Section 7(f) of the Registration Rights Agreement, BT
shall not be required to contribute any amount in excess of the net proceeds
received by BT in connection with the sale of the Shares as set forth herein.
13. Miscellaneous. This Agreement shall inure to the benefit of the
Company, its directors, its officers who sign the registration statement, BT,
BT's officers and directors, the several Underwriters and each controlling
person referred to in Section 12 hereof and their respective successors.
Nothing in this Agreement is intended or shall be construed to give
<PAGE>
to any other person, firm or corporation any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision herein
contained. The term "successor" as used in this Agreement shall not include
any purchaser, as such purchaser, of any of the Shares from any of the
several Underwriters.
14. Notices. All communications herein shall be in writing, and if to the
Underwriters, unless otherwise provided, shall be mailed or delivered to the
Representatives, c/o Goldman, Sachs & Co., Attention: Registration
Department, at 85 Broad Street, New York, New York 10004 and c/o Morgan
Stanley & Co. Incorporated, Attention: Managing Director, Equity Syndicate
Department at 1251 Avenue of the Americas, New York, New York 10020, if to
the Company, unless otherwise provided, shall be mailed or delivered to the
Company, at 1 Oak Way, Berkeley Heights, NJ 07922, Attention: Treasurer and
if to BT, unless otherwise provided, shall be mailed or delivered to BT, at
40 East 52nd Street, 14th Floor, New York, New York 10022, Attention:
Secretary, with copies to British Telecommunications plc at BT Centre, 81
Newgate Street, London EC1A 7AJ, Attention: the Secretary, and to Milbank,
Tweed, Hadley & McCloy, 1 Chase Manhattan Plaza, New York, New York 10005,
Attention: Albert F. Lilley, Esq.
15. Termination of Agreement. This Agreement may be terminated by the
Representatives, by delivering written notice of termination to the Company
and BT at any time prior to the time of closing, if after the signing of this
Agreement trading in securities generally on the New York Stock Exchange
shall have been materially suspended or materially limited, or minimum prices
shall have been established on such Exchange (which shall not include trading
suspensions or limitations resulting from the operation of General Rules 80A
and 80B of such Exchange, as amended or supplemented), or a banking
moratorium shall have been declared by either Federal or New York State
authorities.
A termination of this Agreement pursuant to this Section 15 shall be
without liability of any party to any other party.
16. Governing Law. The validity and interpretation of this Agreement shall
be governed by the laws of the State of New York.
17. Survival Clause. Except with respect to any Underwriter who is in
default within the meaning of Section 6 hereof, the indemnity and
contribution agreements contained in Section 12 hereof and the
representations and warranties of the Company and BT set forth in this
Agreement or in any certificate furnished pursuant hereto shall remain
operative and in full force and effect regardless of (i) any termination of
this Agreement, (ii) any investigation made by or on behalf of any
Underwriter or BT or officer or director of BT or any person controlling any
Underwriter or BT or (iii) acceptance of and payment for the Shares.
Please sign and return to us the enclosed duplicate of this letter,
whereupon this letter will become a binding agreement between the Company, BT
and the several Underwriters, in accordance with its terms.
Very truly yours,
AT&T CORP.
By
BT USA HOLDINGS, INC.
By
The foregoing Agreement is hereby
confirmed and accepted as of
the date first above written.
(Goldman, Sachs & Co.)
Morgan Stanley & Co. Incorporated
By:
Acting severally on behalf of themselves and the several Underwriters named
herein.
<PAGE>
SCHEDULE I
<TABLE>
<CAPTION>
Number
Name of Shares
<S> <C>
Goldman, Sachs & Co.
Morgan Stanley & Co. Incorporated
Total 35,859,199
</TABLE>
Exhibit 5
December 7, 1994
AT&T Corp.
32 Avenue of the Americas
New York, NY 10013
Dear Sirs:
With reference to the registration statement on Form S-3 which AT&T Corp.
(the "Company") proposes to file with the Securities and Exchange Commission
(the "SEC") under the Securities Act of 1933, as amended, registering
35,859,199 outstanding common shares (par value $1 per share) of the Company
(the "Shares") which may be offered and sold by BT USA Holdings, Inc., I am
of the opinion that:
1. the Company is a corporation duly organized, validly existing and in good
standing under the laws of the State of New York;
2. the Shares are legally issued, fully paid and nonassessable.
In giving the foregoing opinion, I have relied on an opinion of H. John
Hokenson, General Attorney, AT&T Corp., to the undersigned and the Company,
dated today.
I hereby consent to the filing of this opinion with the SEC in connection
with the registration statement referred to above.
Very truly yours,
Marilyn J. Wasser
Vice President--Law
and Secretary
Exhibit 23-A
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in this registration statement
on Form S-3 of AT&T Corp. and its subsidiaries (the "Company") of our
reports, which include explanatory paragraphs regarding the change in methods
of accounting for postretirement benefits, postemployment benefits and income
taxes in 1993, dated January 27, 1994 (notes 4, 21, and 22 are dated
September 19, 1994), on our audits of the consolidated financial statements
and consolidated financial statement schedules of the Company, which are
included or incorporated by reference in the Company's Annual Report on Form
10-K for the year ended December 31, 1993 and included in Form 8-K, dated
October 26, 1994.
COOPERS & LYBRAND L.L.P.
New York, New York
December 7, 1994
Exhibit 23-B
Consent of Marilyn J. Wasser is contained in the opinion of counsel filed as
Exhibit 5.
Exhibit 24
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is both a director and an officer of the Company, as
indicated below his signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints R. W. MILLER,
M. B. TART and S. L. PRENDERGAST, and each of them, as attorney for him and
in his name, place and stead, and in his capacity as both a director and an
officer of the Company, to execute and file any such registration statement,
including the related prospectus or prospectuses, with respect to the
above-described common shares, and thereafter to execute and file any amended
registration statement or statements with respect thereto and any amended
prospectus or prospectuses, including an amended registration statement and
amended prospectus with respect to up to 5,378,880 additional common shares,
if and when the issuance of such shares is authorized by the Company, to be
offered by the Company in conjunction with the offering of the
above-described common shares, or amendments or supplements to any of the
foregoing, hereby giving and granting to said attorneys, and each of them,
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as he might or could do if personally
present at the doing thereof, hereby ratifying and confirming all that said
attorneys may or shall lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
6th day of December, 1994.
R. E. Allen
Chairman of the Board
and Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is an officer of the Company, as indicated below his
signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints M. B. TART
and S. L. PRENDERGAST, and each of them, as attorneys for him and in his
name, place and stead, and in his capacity as an officer of the Company, to
execute and file any such registration statement, including the related
prospectus or prospectuses, with respect to the above-described common
shares, and thereafter to execute and file any amended registration statement
or statements with respect thereto and any amended prospectus or
prospectuses, including an amended registration statement and amended
prospectus with respect to up to 5,378,880 additional common shares, if and
when the issuance of such shares is authorized by the Company, to be offered
by the Company in conjunction with the offering of the above- described
common shares, or amendments or supplements to any of the foregoing, hereby
giving and granting to said attorneys, and each of them, full power and
authority to do and perform each and every act and thing whatsoever requisite
and necessary to be done in and about the premises, as fully, to all intents
and purposes, as he might or could do if personally present at the doing
thereof, hereby ratifying and confirming all that said attorneys may or shall
lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
5th day of December, 1994.
R. W. Miller
Executive Vice President and
Chief Financial Officer
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is an officer of the Company, as indicated below her
signature:
NOW, THEREFORE, the undersigned hereby constitutes and appoints R. W. MILLER
and S. L. PRENDERGAST, and each of them, as attorneys for her and in her
name, place and stead, and in her capacity as an officer of the Company, to
execute and file any such registration statement, including the related
prospectus or prospectuses, with respect to the above-described common
shares, and thereafter to execute and file any amended registration statement
or statements with respect thereto and any amended prospectus or
prospectuses, including an amended registration statement and amended
prospectus with respect to up to 5,378,880 additional common shares, if and
when the issuance of such shares is authorized by the Company, to be offered
by the Company in conjunction with the offering of the above-described common
shares, or amendments or supplements to any of the foregoing, hereby giving
and granting to said attorneys, and each of them, full power and authority to
do and perform each and every act and thing whatsoever requisite and
necessary to be done in and about the premises, as fully, to all intents and
purposes, as she might or could do if personally present at the doing
thereof, hereby ratifying and confirming all that said attorneys may or shall
lawfully do, or cause to be done, by virtue hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
7th day of December, 1994.
M. B. Tart
Vice President and
Controller
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is a director of the Company:
NOW, THEREFORE, the undersigned hereby constitutes and appoints R. W. MILLER,
M. B. TART and S. L. PRENDERGAST, and each of them, as attorneys for him or
her and in his or her name, place and stead, and in his or her capacity as a
director of the Company, to execute and file any such registration statement,
including the related prospectus or prospectuses, with respect to the
above-described common shares, and thereafter to execute and file any amended
registration statement or statements with respect thereto and any amended
prospectus or prospectuses, including an amended registration statement and
amended prospectus with respect to up to 5,378,880 additional common shares,
if and when the issuance of such shares is authorized by the Company, to be
offered by the Company in conjunction with the offering of the
above-described common shares, or amendments or supplements to any of the
foregoing, hereby giving and granting to said attorneys, and each of them,
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as he or she might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
6th day of December, 1994.
M. Kathryn Eickhoff
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is a director of the Company:
NOW, THEREFORE, the undersigned hereby constitutes and appoints R. W. MILLER,
M. B. TART and S. L. PRENDERGAST, and each of them, as attorneys for him or
her and in his or her name, place and stead, and in his or her capacity as a
director of the Company, to execute and file any such registration statement,
including the related prospectus or prospectuses, with respect to the
above-described common shares, and thereafter to execute and file any amended
registration statement or statements with respect thereto and any amended
prospectus or prospectuses, including an amended registration statement and
amended prospectus with respect to up to 5,378,880 additional common shares,
if and when the issuance of such shares is authorized by the Company, to be
offered by the Company in conjunction with the offering of the
above-described common shares, or amendments or supplements to any of the
foregoing, hereby giving and granting to said attorneys, and each of them,
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as he or she might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
6th day of December, 1994.
Philip M. Hawley
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is a director of the Company:
NOW, THEREFORE, the undersigned hereby constitutes and appoints R. W. MILLER,
M. B. TART and S. L. PRENDERGAST, and each of them, as attorneys for him or
her and in his or her name, place and stead, and in his or her capacity as a
director of the Company, to execute and file any such registration statement,
including the related prospectus or prospectuses, with respect to the
above-described common shares, and thereafter to execute and file any amended
registration statement or statements with respect thereto and any amended
prospectus or prospectuses, including an amended registration statement and
amended prospectus with respect to up to 5,378,880 additional common shares,
if and when the issuance of such shares is authorized by the Company, to be
offered by the Company in conjunction with the offering of the
above-described common shares, or amendments or supplements to any of the
foregoing, hereby giving and granting to said attorneys, and each of them,
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as he or she might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
5th day of December, 1994.
Drew Lewis
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is a director of the Company:
NOW, THEREFORE, the undersigned hereby constitutes and appoints R. W. MILLER,
M. B. TART and S. L. PRENDERGAST, and each of them, as attorneys for him or
her and in his or her name, place and stead, and in his or her capacity as a
director of the Company, to execute and file any such registration statement,
including the related prospectus or prospectuses, with respect to the
above-described common shares, and thereafter to execute and file any amended
registration statement or statements with respect thereto and any amended
prospectus or prospectuses, including an amended registration statement and
amended prospectus with respect to up to 5,378,880 additional common shares,
if and when the issuance of such shares is authorized by the Company, to be
offered by the Company in conjunction with the offering of the
above-described common shares, or amendments or supplements to any of the
foregoing, hereby giving and granting to said attorneys, and each of them,
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as he or she might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
6th day of December, 1994.
Victor A. Pelson
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is a director of the Company:
NOW, THEREFORE, the undersigned hereby constitutes and appoints R. W. MILLER,
M. B. TART and S. L. PRENDERGAST, and each of them, as attorneys for him or
her and in his or her name, place and stead, and in his or her capacity as a
director of the Company, to execute and file any such registration statement,
including the related prospectus or prospectuses, with respect to the
above-described common shares, and thereafter to execute and file any amended
registration statement or statements with respect thereto and any amended
prospectus or prospectuses, including an amended registration statement and
amended prospectus with respect to up to 5,378,880 additional common shares,
if and when the issuance of such shares is authorized by the Company, to be
offered by the Company in conjunction with the offering of the
above-described common shares, or amendments or supplements to any of the
foregoing, hereby giving and granting to said attorneys, and each of them,
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as he or she might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
5th day of December, 1994.
Donald S. Perkins
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is a director of the Company:
NOW, THEREFORE, the undersigned hereby constitutes and appoints R. W. MILLER,
M. B. TART and S. L. PRENDERGAST, and each of them, as attorneys for him or
her and in his or her name, place and stead, and in his or her capacity as a
director of the Company, to execute and file any such registration statement,
including the related prospectus or prospectuses, with respect to the
above-described common shares, and thereafter to execute and file any amended
registration statement or statements with respect thereto and any amended
prospectus or prospectuses, including an amended registration statement and
amended prospectus with respect to up to 5,378,880 additional common shares,
if and when the issuance of such shares is authorized by the Company, to be
offered by the Company in conjunction with the offering of the
above-described common shares, or amendments or supplements to any of the
foregoing, hereby giving and granting to said attorneys, and each of them,
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as he or she might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
5th day of December, 1994.
Henry B. Schacht
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is a director of the Company:
NOW, THEREFORE, the undersigned hereby constitutes and appoints R. W. MILLER,
M. B. TART and S. L. PRENDERGAST, and each of them, as attorneys for him or
her and in his or her name, place and stead, and in his or her capacity as a
director of the Company, to execute and file any such registration statement,
including the related prospectus or prospectuses, with respect to the
above-described common shares, and thereafter to execute and file any amended
registration statement or statements with respect thereto and any amended
prospectus or prospectuses, including an amended registration statement and
amended prospectus with respect to up to 5,378,880 additional common shares,
if and when the issuance of such shares is authorized by the Company, to be
offered by the Company in conjunction with the offering of the
above-described common shares, or amendments or supplements to any of the
foregoing, hereby giving and granting to said attorneys, and each of them,
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as he or she might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
5th day of December, 1994.
Franklin A. Thomas
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is a director of the Company:
NOW, THEREFORE, the undersigned hereby constitutes and appoints R. W. MILLER,
M. B. TART and S. L. PRENDERGAST, and each of them, as attorneys for him or
her and in his or her name, place and stead, and in his or her capacity as a
director of the Company, to execute and file any such registration statement,
including the related prospectus or prospectuses, with respect to the
above-described common shares, and thereafter to execute and file any amended
registration statement or statements with respect thereto and any amended
prospectus or prospectuses, including an amended registration statement and
amended prospectus with respect to up to 5,378,880 additional common shares,
if and when the issuance of such shares is authorized by the Company, to be
offered by the Company in conjunction with the offering of the
above-described common shares, or amendments or supplements to any of the
foregoing, hereby giving and granting to said attorneys, and each of them,
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as he or she might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
6th day of December, 1994.
Joseph D. Williams
Director
<PAGE>
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS:
WHEREAS, AT&T CORP., a New York corporation (hereinafter referred to as the
"Company"), proposes to file with the Securities and Exchange Commission,
under the provisions of the Securities Act of 1933, as amended, a
registration statement or registration statements with respect to 35,859,199
common shares to be offered by British Telecommunications plc or any of its
affiliates, including BT USA Holdings, Inc.; and
WHEREAS, the undersigned is a director of the Company:
NOW, THEREFORE, the undersigned hereby constitutes and appoints R. W. MILLER,
M. B. TART and S. L. PRENDERGAST, and each of them, as attorneys for him or
her and in his or her name, place and stead, and in his or her capacity as a
director of the Company, to execute and file any such registration statement,
including the related prospectus or prospectuses, with respect to the
above-described common shares, and thereafter to execute and file any amended
registration statement or statements with respect thereto and any amended
prospectus or prospectuses, including an amended registration statement and
amended prospectus with respect to up to 5,378,880 additional common shares,
if and when the issuance of such shares is authorized by the Company, to be
offered by the Company in conjunction with the offering of the
above-described common shares, or amendments or supplements to any of the
foregoing, hereby giving and granting to said attorneys, and each of them,
full power and authority to do and perform each and every act and thing
whatsoever requisite and necessary to be done in and about the premises, as
fully, to all intents and purposes, as he or she might or could do if
personally present at the doing thereof, hereby ratifying and confirming all
that said attorneys may or shall lawfully do, or cause to be done, by virtue
hereof.
IN WITNESS WHEREOF, the undersigned has executed this Power of Attorney this
2nd day of December, 1994.
Thomas H. Wyman
Director
