AT&T INC. 6.125% GLOBAL NOTES DUE 2015 UNDERWRITING AGREEMENT
Exhibit 1.1
AT&T INC.
6.125% GLOBAL NOTES DUE 2015
March 27, 2008
To the Representative(s)
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
AT&T Inc., a Delaware corporation formerly known as SBC Communications Inc. (the “Company”),
may issue and sell from time to time series of its debt securities registered under the
registration statement referred to in Paragraph 1(a) hereof (“Securities” and, individually,
“Security”). The Securities will be issued under an
Indenture, dated as of November 1, 1994 (the
“Indenture”), from the Company to The Bank of New York, as Trustee, in one or more series, which
series may vary as to interest rates, maturities, redemption provisions and selling prices, with
all such terms for any particular series being determined at the time of sale. The Company proposes
to sell to the underwriters named in Schedule II hereto (“Underwriters”), for whom you are acting
as representative(s) (“Representative”), a series of Securities of the designation, with the terms
and in the aggregate principal amount specified in Schedule I hereto (“Underwritten Securities”
and, individually, “Underwritten Security”).
1. The Company represents and warrants to, and agrees with, the several
Underwriters that:
(a) A registration statement on Form S-3 with respect to the Securities has been
prepared by the Company in conformity with the requirements of the Securities Act of 1933,
as amended (“Securities Act”), and the rules and regulations (“Rules and Regulations”) of
the Securities and Exchange Commission (“Commission”) thereunder and has become effective.
As used in this Agreement:
(i) “Registration Statement” as of any time means the Registration
Statement in the form then filed with the Commission, including any amendment
thereto, any document incorporated by reference therein and any information in a
prospectus or prospectus supplement deemed or retroactively deemed to be a part
thereof pursuant to Rule 430B that has not been superseded or modified.
“Registration Statement” without reference to a time means the Registration
Statement as of the time of the first contract of sale for the Underwritten
Securities, which time shall be considered the “effective date” of the Registration
Statement relating to the Underwritten Securities. For purposes of this definition,
information contained in a form of prospectus or prospectus supplement that is deemed
retroactively to be a part of the Registration Statement pursuant to
Rule 430B shall be
considered to be included in the Registration Statement as of the time specified in Rule
430B.
(ii) “Statutory Prospectus” as of any time means the prospectus relating to the
Underwritten Securities that is included in the Registration Statement immediately prior to
that time, including any document incorporated by reference therein and any basic
prospectus or prospectus supplement deemed to be a part thereof
pursuant to Rule 430B that
has not been superseded or modified. For purposes of this definition, information contained
in a form of prospectus (including a prospectus supplement) that is deemed retroactively to
be a part of the Registration Statement pursuant to Rule 430B shall be considered to be
included in the Statutory Prospectus only as of the actual time that form of prospectus
(including a prospectus supplement) is filed with the Commission pursuant to Rule 424(b).
(iii) “Prospectus” means the Statutory Prospectus that discloses the public
offering price and other final terms of the Underwritten Securities and otherwise satisfies
Section 10(a) of the Securities Act of 1933.
(iv) “Issuer Free Writing Prospectus” means any “issuer free writing prospectus,”
as defined in Rule 433, relating to the Underwritten Securities in the form filed or
required to be filed with the Commission or, if not required to be filed, in the form
retained in the Company’s records pursuant to Rule 433(g). “General Use Issuer Free Writing
Prospectus” means any Issuer Free Writing Prospectus that is intended for general
distribution to prospective investors, as evidenced by its being specified in a schedule to
this Agreement. “Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not a General Use Issuer Free Writing Prospectus.
(v) “Applicable Time” means the time and date identified as such in Schedule I
of this Agreement.
(b) The Registration Statement and the Prospectus contain, and (in the case of any
amendment or supplement to any such document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which this representation is being made)
will contain at all times during the period specified in Paragraph 8(c) hereof, all statements
which are required by the Securities Act, the Securities Exchange Act of 1934, as amended
(“Exchange Act”), the Trust Indenture Act of 1939, as amended (“Trust Indenture Act”), and the
rules and regulations of the Commission under such Acts; the Indenture, including any amendments
and supplements thereto, pursuant to which the Underwritten Securities will be issued will conform
with the requirements of the Trust Indenture Act and the rules and regulations of the Commission
thereunder, and the Registration Statement and the Prospectus do not, and
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(in the case of any amendment or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date as of which this
representation is being made) will not at any time during the period specified in Paragraph 8(c)
hereof, 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 except that the
Company makes no representation or warranty as to information contained in or omitted from the
Registration Statement or the Prospectus in reliance upon and in conformity with information
furnished in writing to the Company through the Representative by or on behalf of any Underwriter
specifically for use therein, or as to any statements in or omissions from the Statement of
Eligibility and Qualification of the Trustee under the Indenture.
(c)
(i) (A) At the time of initial filing of the Registration Statement, (B) at the
time of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Securities Act (whether such amendment was by post-effective amendment,
incorporated report filed pursuant to Section 13 or 15(d) of the Exchange Act or form of
prospectus), and (C) at the time the Company or any person acting on its behalf (within the
meaning, for this clause only, of Rule 163(c)) made any offer relating to the Underwritten
Securities in reliance on the exemption of Rule 163, the Company was a “well known seasoned
issuer” as defined in Rule 405, including not having been an “ineligible issuer” as defined
in Rule 405.
(ii) The Registration Statement is an “automatic shelf registration statement,”
as defined in Rule 405, that initially became effective within three years of the date of
this Agreement. If immediately prior to the Renewal Deadline (as hereinafter defined), any
of the Underwritten Securities remain unsold by the Underwriters, the Company will prior to
the Renewal Deadline file, if it has not already done so and is eligible to do so, a new
automatic shelf registration statement relating to the Underwritten Securities, in a form
satisfactory to the Representative. If the Company is no longer eligible to file an
automatic shelf registration statement, the Company will prior to the Renewal Deadline, if
it has not already done so, file a new shelf registration statement relating to the
Underwritten Securities, in a form satisfactory to the Representative, and will use its
best efforts to cause such registration statement to be declared effective within 180 days
after the Renewal Deadline. The Company will take all other action necessary or appropriate
to permit the public offering and sale of the Underwritten Securities to continue as
contemplated in the expired registration statement relating to the Underwritten Securities.
References herein to the Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as the case may be.
“Renewal Deadline” means the third anniversary of the initial effective time of the
Registration Statement.
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(iii) The Company has not received from the Commission any notice pursuant to Rule
401(g)(2) objecting to use of the automatic shelf registration statement form. If at any
time when Underwritten Securities remain unsold by the Underwriters the Company receives
from the Commission a notice pursuant to Rule 401(g)(2) or otherwise ceases to be eligible
to use the automatic shelf registration statement form, the Company will (i) promptly
notify the Representative, (ii) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Underwritten Securities, in a
form satisfactory to the Representative, (iii) use its best efforts to cause such
registration statement or post-effective amendment to be declared effective as soon as
practicable, and (iv) promptly notify the Representative of such effectiveness. The Company
will take all other action necessary or appropriate to permit the public offering and sale
of the Underwritten Securities to continue as contemplated in the registration statement
that was the subject of the Rule 401(g)(2) notice or for which the Company has otherwise
become ineligible. References herein to the Registration Statement shall include such new
registration statement or post-effective amendment, as the case may be.
(iv) The Company has paid or shall pay the required Commission filing fees
relating to the Underwritten Securities within the time required by
Rule 456(b)(1) without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r).
(d) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of
Rule 164(h)(2)) of the Underwritten Securities and (ii) at the date of this Agreement, the
Company was not and is not an “ineligible issuer,” as defined in Rule 405.
(e) As of the Applicable Time, neither (i) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time, the Statutory Prospectus and the
additional information, if any, identified in Schedule 7 to this Agreement, all considered
together (collectively, the “General Disclosure Package”), nor (ii) any individual Limited
Use Issuer Free Writing Prospectus, when considered together with the General
Disclosure Package, included any untrue statement of a material fact or omitted to state
any material fact necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading except that the Company
makes no representation or warranty as to information contained in or omitted from any
prospectus included in the Registration Statement or any Issuer Free Writing Prospectus
in reliance upon and in conformity with information furnished in writing to the Company
through the Representative by or on behalf of any Underwriter specifically for use
therein.
(f) Each Issuer Free Writing Prospectus, as of its issue date and at all
subsequent times through the completion of the public offer and sale of the Underwritten
Securities or until any earlier date that the Company notified or notifies the
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Representative as described in the next sentence, did not, does not and will not include any
information that conflicted, conflicts or will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an Issuer Free Writing Prospectus
there occurred or occurs an event or development as a result of which such Issuer Free Writing
Prospectus conflicted or would conflict with the information then contained in the Registration
Statement or included or would include an untrue statement of a material fact or omitted or would
omit to state a material fact necessary in order to make the statements therein, in the light of
the circumstances prevailing at that subsequent time, not misleading, (i) the Company has promptly
notified or will promptly notify the Representative and (ii) the Company has promptly amended or
will promptly amend or supplement such Issuer Free Writing Prospectus to eliminate or correct such
conflict, untrue statement or omission.
(g) The Company is not in violation of its corporate charter or bylaws or in default
under any agreement, indenture or instrument, the effect of which violation or default would be
material to the Company; the execution, delivery and performance of this Agreement and any Delayed
Delivery Contracts (as defined in Paragraph 3 hereof) and compliance by the Company with the
provisions of the Underwritten Securities and the Indenture will not conflict with, result in the
creation or imposition of any lien, charge or encumbrance upon any of the assets of the Company or
any of its material subsidiaries pursuant to the terms of, or constitute a default under, any
agreement, indenture or instrument, or result in a violation of the corporate charter or bylaws of
the Company or any order, rule or regulation of any court or governmental agency having
jurisdiction over the Company; and except as required by the Securities Act, the Trust Indenture
Act and applicable state securities laws, no consent, authorization or order of, or filing or
registration with, any court or governmental agency is required for the execution, delivery and
performance of this Agreement, the Delayed Delivery Contracts, if any, and the Indenture. The
Commission has not issued any order preventing or suspending the use of any part of the
Registration Statement or the Prospectus.
(h) Except as described in or contemplated by the General Disclosure Package, there
shall have not occurred any changes or any development involving a prospective change, or affecting
particularly the business or properties of the Company or its subsidiaries which materially impairs
the investment quality of the Underwritten Securities since the dates as of which information is
given in the General Disclosure Package.
(i) On the Delivery Date (as defined in Paragraph 7 hereof) (i) the Indenture will have
been duly authorized, executed and delivered by the Company and will constitute the legally binding
obligation of the Company, enforceable in accordance with its terms, (ii) the Underwritten
Securities will have been duly authorized and, upon payment therefor as provided in this Agreement,
will constitute legally binding obligations of the Company entitled to the benefits of the
Indenture, and (iii) the Underwritten Securities and the Indenture will conform to the descriptions
thereof contained in the Prospectus.
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(j) Each of the Company and its subsidiaries has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its jurisdiction of incorporation,
with full corporate power and authority to own its properties and conduct its business as described
in the General Disclosure Package, and is duly qualified to do business as a foreign corporation
and is in good standing under the laws of each jurisdiction which requires such qualification
wherein it owns or leases properties or conducts business, except where the failure to so qualify
would not have a material adverse effect on the Company and its subsidiaries taken as a whole.
(k) Except as described in the General Disclosure Package, there is no material
litigation or governmental proceeding pending or, to the knowledge of the Company, threatened
against the Company or any of its subsidiaries which is reasonably expected to result in any
material adverse change in the financial condition, results of operations, business or prospects of
the Company and its subsidiaries taken as a whole or which is required to be disclosed in the
General Disclosure Package.
(l) The financial statements filed as part of the Registration Statement and the General
Disclosure Package present, or (in the case of any amendment or supplement to any such document, or
any material incorporated by reference in any such document, filed with the Commission after the
date as of which this representation is being made) will present at all times during the period
specified in Paragraph 8(c) hereof, fairly, the consolidated financial condition and results of
operations of the Company and its subsidiaries, at the dates and for the periods indicated, and
have been, and (in the case of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission after the date as of
which this representation is being made) will be at all times during the period specified in
Paragraph 8(c) hereof, prepared in conformity with generally accepted accounting principles applied
on a consistent basis throughout the periods involved (except as described in the notes thereto).
(m) The documents incorporated by reference into any Statutory Prospectus, the General
Disclosure Package or the Prospectus have been, and (in the case of any amendment or supplement to
any such document, or any material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made) will be, at all times
during the period specified in Paragraph 8(c) hereof, prepared by the Company in conformity with
the applicable requirements of the Securities Act and the Rules and Regulations and the Exchange
Act and the rules and regulations of the Commission thereunder and such documents have been, or (in
the case of any amendment or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date as of which this
representation is being made) will be at all times during the period specified in Paragraph 8(c)
hereof, timely filed as required thereby; and no such documents were filed with the Commission
since the Commission’s close of business on the business day immediately prior to the date of this
Agreement and prior to the execution of this Agreement.
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(n) There are no contracts or other documents which are required to be filed as
exhibits to the Registration Statement by the Securities Act or by the Rules and
Regulations, or which were required to be filed as exhibits to any document incorporated by
reference in the Prospectus by the Exchange Act or the rules and regulations of the
Commission thereunder, which have not been filed as exhibits to the Registration Statement
or to such document or incorporated therein by reference as permitted by the Rules and
Regulations or the rules and regulations of the Commission under the Exchange Act as
required.
2. Subject to the terms and conditions and in reliance upon the representations and
warranties herein set forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter agrees, severally and not jointly, to purchase from the Company,
at the purchase price and on the other terms set forth in Schedule I hereto, the principal amount
of the Underwritten Securities set forth opposite its name in Schedule II hereto.
3. Any offer to purchase Underwritten Securities by institutional investors solicited
by the Underwriters for delayed delivery shall be made pursuant to contracts substantially in
the
form of Exhibit A attached hereto, with such changes therein as the Company and the
Representative may approve (“Delayed Delivery Contracts”). The Company shall have the right,
in its sole discretion, to approve or disapprove each such institutional investor.
Underwritten
Securities which are subject to Delayed Delivery Contracts are herein sometimes called
“Delayed Delivery Underwritten Securities” and Underwritten Securities which are not subject
to Delayed Delivery Contracts are herein sometimes called “Immediate Delivery Underwritten
Securities”.
Contemporaneously with the purchase on the Delivery Date by the Underwriters of the Immediate
Delivery Underwritten Securities pursuant to this Agreement, the Company will pay to the
Representative, for the account of the Underwriters, the compensation specified in Schedule I
hereto for arranging the sale of Delayed Delivery Underwritten Securities. The Underwriters shall
have no responsibility with respect to the validity or performance of any Delayed Delivery
Contracts.
For the purpose of determining the principal amount of Immediate Delivery Underwritten
Securities to be purchased by each Underwriter, there shall be deducted from the principal amount
of Underwritten Securities to be purchased by such Underwriter as set forth in Schedule II hereto
that portion of the aggregate principal amount of Delayed Delivery Underwritten Securities that the
principal amount of Underwritten Securities to be purchased by such Underwriter as set forth in
Schedule II hereto bears to the aggregate principal amount of Underwritten Securities set forth
therein to be purchased by all of the Underwriters (in each case as adjusted by the Representative
to avoid fractions of the minimum principal amount in which the Underwritten Securities may be
issued), except to the extent that the Representative determines, in its discretion, that such
deduction shall be otherwise than in such proportion and so advises the Company.
4. [Reserved]
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5. The Company shall not be obligated to deliver any Underwritten Securities except
upon payment for all Immediate Delivery Underwritten Securities to be purchased pursuant to
this Agreement as hereinafter provided.
6. If any Underwriter defaults in the performance of its obligations under this
Agreement, the remaining non-defaulting Underwriters shall be obligated to purchase the
Immediate Delivery Underwritten Securities which the defaulting Underwriter agreed but failed
to purchase in the respective proportions which the principal amount of Underwritten
Securities
set forth in Schedule II hereto to be purchased by each remaining non-defaulting Underwriter
set
forth therein bears to the aggregate principal amount of Underwritten Securities set forth
therein
to be purchased by all the remaining non-defaulting Underwriters; provided that the remaining
non-defaulting Underwriters shall not be obligated to purchase any Immediate Delivery
Underwritten Securities if the aggregate principal amount of Immediate Delivery Underwritten
Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase
exceeds 9.09% of the total principal amount of Underwritten Securities, and any remaining
non-defaulting Underwriter shall not be obligated to purchase more than 110% of the principal
amount of Underwritten Securities set forth in Schedule II hereto to be purchased by it. If
the
foregoing maximums are exceeded, the remaining non-defaulting Underwriters, or those other
underwriters satisfactory to the Representative who so agree, shall have the right, but shall
not be
obligated, to purchase, in such proportion as may be agreed upon among them, all the Immediate
Delivery Underwritten Securities. If the remaining Underwriters or other underwriters
satisfactory to the Representative do not elect to purchase the Immediate Delivery
Underwritten
Securities which the defaulting Underwriter or Underwriters agreed but failed to purchase,
this
Agreement shall terminate without liability on the part of any non-defaulting Underwriter, or
the
Company, except that the Company will continue to be liable for the payment of expenses as set
forth in Paragraph 8(h) hereof.
Nothing contained in this Paragraph 6 shall relieve a defaulting Underwriter of any liability
it may have to the Company for damages caused by its default. If other Underwriters are obligated
or agree to purchase the Immediate Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the Delivery Date for up to
seven full business days in order to effect any changes that in the opinion of the Company or the
Representative may be necessary in the Registration Statement, the General Disclosure Package, the
Prospectus or in any other document or arrangement.
7. Delivery of and payment for the Immediate Delivery Underwritten Securities
shall be made at such address, date and time as may be specified in Schedule I hereto. This
date
and time are sometimes referred to as the “Delivery Date.” On the Delivery Date, the Company
shall deliver the Immediate Delivery Underwritten Securities to the Representative for the
account of each Underwriter against payment to or upon the order of the Company of the
purchase price by certified or official bank check or checks or wire transfer payable in
Federal
(same day) funds. Time shall be of the essence, and delivery at the time and place specified
pursuant to this Agreement is a further condition of the obligation of each Underwriter
hereunder. Upon delivery, the Immediate Delivery Underwritten Securities shall be in such form
or forms and in such denominations as may be set forth in Schedule I. Immediate Delivery
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Underwritten Securities in registered form shall be in such authorized denominations and registered
in such names as the Representative shall request in writing not less than two full business days
prior to the Delivery Date. For the purpose of expediting the checking and packaging of the
Immediate Delivery Underwritten Securities, the Company shall make the Immediate Delivery
Underwritten Securities available for inspection by the Representative in New York, New York not
later than 2:00 P.M., local time, on the business day prior to the Delivery Date.
8. The Company agrees with the several Underwriters that:
(a) The Company will furnish promptly to the Representative and to counsel
for the Underwriters signed copies of the Registration Statement as originally filed
and
each amendment and supplement thereto filed prior to the date hereof and relating to or
covering the Underwritten Securities, and a copy of the Prospectus filed with the
Commission, including all documents incorporated therein by reference and all consents
and exhibits filed therewith;
(b) The Company will deliver promptly to the Representative such reasonable
number of the following documents as the Representative may request: (i) conformed
copies of the Registration Statement (excluding exhibits other than the computation of
the
ratio of earnings to fixed charges, the Indenture and this Agreement), (ii) the
Prospectus,
(iii) any Issuer Free Writing Prospectus and (iv) any documents incorporated by
reference
in the Prospectus or any Issuer Free Writing Prospectus;
(c) During any period when a prospectus relating to the Underwritten
Securities is (or, but for the exemption in Rule 172, would be) required by law to be
delivered, the Company will not file any amendment of the Registration Statement nor
will the Company file any amendment or supplement to the Prospectus (except for (i) an
amendment or supplement consisting solely of the filing of a document under the
Exchange Act or (ii) a supplement relating to an offering of securities other than the
Underwritten Securities), unless the Company has furnished the Representative a copy of
such proposed amendment or supplement for its review prior to filing and will not file
any such proposed amendment or supplement to which the Representative reasonably
objects. Subject to the foregoing sentence, the Company will cause each Statutory
Prospectus (including the Prospectus) and any amendment or supplement thereto to be
filed with the Commission as required pursuant to Rule 424 under the Securities Act not
later than the second business day following the earlier of the date it is first used
or the
date of this Agreement. The Company will promptly advise the Representative (i) when
each Statutory Prospectus or any amendment or supplement thereto shall have been filed
with the Commission pursuant to Rule 424 under the Securities Act, (ii) when any
amendment of the Registration Statement shall have become effective, (iii) of any
request
by the Commission for any amendment of the Registration Statement or amendment of or
supplement to any Statutory Prospectus or Issuer Free Writing Prospectus or for any
additional information, (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement or the institution or
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threatening of any proceeding for that purpose or under Section 8A of the Securities Act and (v) of
the receipt by the Company of any notification with respect to the suspension of the qualification
of the Underwritten Securities for sale in any jurisdiction or the initiation or threatening of any
proceeding for such purpose. The Company will promptly (upon filing thereof) furnish the
Representative a copy of any amendment or supplement to any Statutory Prospectus, Issuer Free
Writing Prospectus or Registration Statement not furnished to the Representative for prior review
pursuant to exception (i) or (ii) of the first sentence of this subsection (c). The Company will
use its best efforts to prevent the issuance of any such stop order and, if issued, to obtain as
soon as possible the withdrawal thereof;
(d) If, at any time when a prospectus relating to the Underwritten Securities is
(or, but for the exemption in Rule 172, would be) required to be delivered under the
Securities Act, any event occurs as a result of which the Registration Statement, as then
amended, or the Prospectus, as then amended or supplemented, would include any untrue
statement of a material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were made, not
misleading, or if it shall be necessary to amend the Registration Statement or to amend or
supplement the Prospectus to comply with the Securities Act or the Exchange Act or the
respective rules thereunder, the Company promptly will (i) notify the Representative of
the happening of such event, (ii) prepare and file with the Commission, subject to the first
sentence of paragraph (c) of this Section 8, an amendment or supplement which will
correct such statement or omission or an amendment or supplement which will effect
such compliance and (iii) will supply any such amended or supplemented Prospectus to
the Representative in such quantities as the Representative may reasonably request;
(e) As soon as practicable, the Company will make generally available to its
security holders and to the Representative an earnings statement or statements of the
Company which will satisfy the provisions of Section 11(a) of the Securities Act and
Rule 158 under the Securities Act;
(f) During a period of five years after the date hereof, the Company will
furnish to the Representative copies of all reports and financial statements furnished by
the Company to each securities exchange on which securities issued by the Company
may be listed pursuant to requirements of or agreements with such exchange or to the
Commission pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(g) The Company will endeavor to qualify the Underwritten Securities for sale
under the laws of such jurisdictions as the Representative may designate and will
maintain such qualifications in effect so long as required for the distribution of the
Underwritten Securities, provided that in connection therewith the Company shall not be
required to qualify as a foreign corporation or take any action which would subject it to
general or unlimited service of process in any jurisdiction where it is not now so subject;
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(h) The Company will pay the costs incident to the authorization, issuance and delivery
of the Underwritten Securities and any taxes payable in that connection; the costs incident to the
preparation, printing and filing under the Securities Act of the Registration Statement and any
amendments, supplements and exhibits thereto; the costs of distributing the Registration Statement
as originally filed and each amendment and post-effective amendment thereof (including exhibits),
any Statutory Prospectus, the Prospectus and any documents incorporated by reference in any of the
foregoing documents; the costs incident to the preparation, printing and distribution of each
Issuer Free Writing Prospectus to investors or prospective investors; the costs of producing this
Agreement, the Delayed Delivery Contracts, if any, and the Indenture; fees paid to rating agencies
in connection with the rating of the Securities, including the Underwritten Securities; the fees
and expenses of qualifying the Underwritten Securities under the securities laws of the several
jurisdictions as provided in this Paragraph and of preparing and printing a Blue Sky Memorandum and
a memorandum concerning the legality of the Securities, including the Underwritten Securities, as
an investment (including fees of counsel to the Underwriters); and all other costs and expenses
incident to the performance of the Company’s obligations under this Agreement; provided that,
except as provided in this Paragraph and in Paragraph 12 hereof, the Underwriters shall pay their
own costs and expenses, including the fees and expenses of their counsel, any transfer taxes on the
Underwritten Securities which they may sell and the expenses of advertising any offering of the
Underwritten Securities made by the Underwriters;
(i) Until the termination of the offering of the Underwritten Securities, the Company
will timely file all documents, and any amendments to previously filed documents, required to be
filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act;
(j) During the period beginning on the date hereof and continuing to the Delivery Date,
the Company will not offer, sell, contract to sell or otherwise dispose of any debt securities of
the Company or any guarantees or support obligations of debt securities of others, in any case with
maturities longer than one year, other than Underwritten Securities to the Underwriters;
(k) The Company represents and agrees that, unless it obtains the prior consent of the
Representative, and each Underwriter represents and agrees that, unless it obtains the prior
consent of the Company and the Representative, it has not made and will not make any offer relating
to the Underwritten Securities that would constitute an Issuer Free Writing Prospectus, or that
would otherwise constitute a “free writing prospectus,” as defined in Rule 405, required to be
filed with the Commission. Any such free writing prospectus consented to by the Company and the
Representative is hereinafter referred to as a “Permitted Free Writing Prospectus.” The Company
represents that it has treated and agrees that it will treat each Permitted Free Writing Prospectus
as an “issuer free writing prospectus,” as defined in Rule 433, and has complied and will comply
with the requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
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including timely Commission filing where required, legending and record keeping. The Company
has complied and will comply with Rule 433; and
(l) The Company has prepared a final term sheet, which is attached hereto as
Schedule IV, relating to the Underwritten Securities, containing only information that
describes the final terms of the Underwritten Securities and otherwise in a form consented
to by the Representative, and will file such final term sheet within the period required by
Rule 433(d)(5)(ii) following the date such final terms have been established for all classes
of the offering of the Underwritten Securities. Any such final term sheet is an Issuer Free
Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.
The Company also consents to the use by any Underwriter of a free writing prospectus only in
the form of one or more term sheets relating to the Underwritten Securities and containing
customary information, it being understood that any such free writing prospectus referred to
above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement.
9. (a) The Company shall indemnify and hold harmless each Underwriter and each
person, if any, who controls any Underwriter within the meaning of the Securities Act from and
against any loss, claim, damage or liability, joint or several, and any action in respect thereof,
to which that Underwriter or controlling person may become subject, under the Securities Act or
otherwise, insofar as such loss, claim, damage, liability or action arises out of, or is based
upon, any untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement at any time, any Statutory Prospectus at any time, the Prospectus or any
Issuer Free Writing Prospectus or any “issuer information” filed or required to be filed pursuant
to Rule 433(d) under the Securities Act, or arises out of, or is based upon, the omission or
alleged omission to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse each Underwriter and such
controlling person for any legal and other expenses reasonably incurred by that Underwriter or
controlling person in investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred (but no more frequently than
annually); provided, however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is based upon, any untrue
statement or alleged untrue statement or omission or alleged omission made in the Registration
Statement at any time, any Statutory Prospectus at any time, the Prospectus or any Issuer Free
Writing Prospectus in reliance upon and in conformity with written information furnished to the
Company through the Representative by or on behalf of any Underwriter specifically for use therein.
The foregoing indemnity agreement is in addition to any liability which the Company may otherwise
have to any Underwriter or controlling person.
(b) Each Underwriter shall indemnify and hold harmless the Company, each of their
directors, each of their officers who signed the Registration Statement and any person who controls
the Company within the meaning of the Securities Act from and against any loss, claim, damage or
liability, joint or several, and any action in respect thereof, to which the Company, or any such
director, officer or controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is based upon,
-12-
any untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement at any time, any Statutory Prospectus at any time, the Prospectus or any Issuer Free
Writing Prospectus, or arises out of, or is based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in conformity with
information furnished in writing to the Company through the Representative by or on behalf of that
Underwriter specifically for use therein, and shall reimburse the Company for any legal and other
expenses reasonably incurred by the Company or any such director, officer or controlling person in
investigating or defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred (but no more frequently than annually). The foregoing
indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the
Company or any of its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this Paragraph 9 of notice of
any claim or the commencement of any action, the indemnified party shall, if a claim in respect
thereof is to be made against the indemnifying party under this Paragraph 9, notify the
indemnifying party in writing of the claim or the commencement of that action, provided that the
failure to notify the indemnifying party shall not relieve it from any liability which it may have
to an indemnified party otherwise than under Paragraph 9(a) or 9(b). If any such claim or action
shall be brought against an indemnified party, and it shall notify the indemnifying party thereof,
the indemnifying party shall be entitled to participate therein, and, to the extent that it wishes,
jointly with any other similarly notified indemnifying party, to assume the defense thereof with
counsel satisfactory to the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or action, the indemnifying
party shall not be liable to the indemnified party under this Paragraph 9 for any legal or other
expenses subsequently incurred by the indemnified party in connection with the defense thereof
other than reasonable costs of investigation. If the indemnifying party shall not elect to assume
the defense of such action, such indemnifying party will reimburse such indemnified party 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 Company and one or more Underwriters and
either (i) the indemnifying party or parties and indemnified party or parties mutually agree or
(ii) representation of both the indemnifying party or parties and the indemnified party or parties
by the same counsel is inappropriate under applicable standards of professional conduct or in the
opinion of such counsel due to actual or potential differing interests between them, then the
indemnifying party shall not have the right to assume the defense of such action on behalf of such
indemnified party and will reimburse such indemnified party for the reasonable fees and expenses of
any counsel retained by them and satisfactory to the indemnifying party, it being understood that
the indemnifying party 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
Representative 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
-13-
indemnified parties. The indemnifying party or parties shall not be liable under this Agreement
with respect to any settlement made by any indemnified party or parties without prior written
consent by the indemnifying party or parties to such settlement.
(d) If the indemnification provided for in this Paragraph 9 shall for any reason be
unavailable to an indemnified party under Paragraph 9(a) or 9(b) hereof in respect of any
loss,
claim, damage or liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the
amount paid or payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, in such proportion as is appropriate to reflect the
relative
benefits received by the Company, on the one hand, and the Underwriters, on the other hand,
from the offering of the Underwritten Securities. If, however, this allocation is not
permitted by
applicable law, then each indemnifying party shall contribute to the amount paid or payable by
such indemnified party as a result of such loss, claim, damage or liability, or action in
respect
thereof, in such proportion as shall be appropriate to reflect the relative benefits received
by the
Company, on the one hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities and the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, with respect to the statements or omissions which resulted in
such loss, claim, damage or liability, or action in respect thereof, as well as any other
relevant
equitable considerations. The relative benefits received by the Company, on the one hand, and
the Underwriters, on the other hand, with respect to such offering shall be deemed to be in
the
same proportion as the total net proceeds from the offering of the Underwritten Securities
(before
deducting expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to such offering. The relative fault
shall
be determined by reference to whether the untrue or alleged untrue statement of a material
fact or
omission or alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount paid
or payable by an indemnified party as a result of the loss, claim, damage or liability, or
action in
respect thereof, referred to above in this Paragraph 9(d) shall be deemed to include, for
purposes
of this Paragraph 9(d), any legal or other expenses reasonably incurred by such indemnified
party in connection with investigating or defending any such action or claim. Notwithstanding
the provisions of this Paragraph
9(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Underwritten Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any 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. The Underwriters’ obligations to contribute as provided in this Paragraph 9(d) are several in proportion to their respective underwriting obligations and not joint.
9(d), no Underwriter shall be required to contribute any amount in excess of the amount by which the total price at which the Underwritten Securities underwritten by it and distributed to the public were offered to the public exceeds the amount of any damages which such Underwriter has otherwise paid or become liable to pay by reason of any 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. The Underwriters’ obligations to contribute as provided in this Paragraph 9(d) are several in proportion to their respective underwriting obligations and not joint.
(e) The agreements contained in this Paragraph 9 and the representations, warranties
and agreements of the Company in Paragraph 1 and Paragraph 8 hereof shall survive the delivery
of the Underwritten Securities and shall remain in full force and effect, regardless of any
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termination or cancellation of this Agreement or any investigation made by or on behalf of any
indemnified party.
10. The obligations of the Underwriters under this Agreement may be terminated by
the Representative, in its absolute discretion, by notice given to and received by the Company
prior to the delivery of and payment for the Immediate Delivery Underwritten Securities, if,
on
or after the Applicable Time, (a) trading in securities generally on the New York Stock
Exchange, Inc. is suspended or materially limited, or (b) a banking moratorium is declared by
either Federal or New York State authorities, or (c) there shall have occurred any outbreak or
material escalation of hostilities or other calamity or crisis or the declaration by the
United States
of war or a national emergency the effect of which on the financial markets of the United
States
is material and adverse and is such as to make it, in the reasonable judgment of the
Representative, impracticable or inadvisable to market such Underwritten Securities on the
terms
and in the manner contemplated by the General Disclosure Package, or (d) the Company shall
have received notice that any rating of any of the Company’s unsecured senior debt securities,
guarantees or support obligations shall have been lowered by any nationally recognized
statistical rating organization (as defined in Rule 15c3-1 under the Exchange Act) or any such
organization has publicly announced that it has under surveillance or review, with possible
negative implications, the ratings of any of the Company’s unsecured senior debt securities,
guarantees or support obligations, or (e) there shall have occurred any change, or any
development involving a prospective change, in or affecting particularly the business or
properties of the Company or its subsidiaries which, in the Representative’s reasonable
judgment, materially impairs the investment quality of the Underwritten Securities.
11. The respective obligations of the Underwriters under this Agreement with respect
to the Underwritten Securities are subject to the accuracy, on the date hereof and on the
Delivery
Date, of the representations and warranties of the Company contained herein, to performance by
the Company of its obligations hereunder, and to each of the following additional terms and
conditions applicable to the Underwritten Securities:
(a) At or before the Delivery Date, no stop order suspending the effectiveness of
the Registration Statement nor any order directed to any document incorporated by reference
in the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and prior to
that time no stop order proceeding shall have been initiated or threatened by the Commission
and no challenge shall have been made by the Commission or its staff as to the accuracy or
adequacy of any document incorporated by reference in the Prospectus or any Issuer Free
Writing Prospectus; any request of the Commission for inclusion of additional information in
the Registration Statement or any Statutory Prospectus or otherwise shall have been complied
with; and after the date hereof the Company shall not have filed with the Commission any
amendment or supplement to the Registration Statement, any Statutory Prospectus, the
Prospectus or any Issuer Free Writing Prospectus (or, in each case, any document
incorporated by reference therein) that shall have been disapproved by the Representative.
-15-
(b) No Underwriter shall have discovered and disclosed to the Company on or
prior to the Delivery Date that the Registration Statement, the General Disclosure
Package, the Prospectus, or any Issuer Free Writing Prospectus contains an untrue
statement of a fact which is material or omits to state a fact which is material and is
required to be stated therein or is necessary to make the statements therein not
misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Underwritten Securities and the
Indenture and the form of the Registration Statement, the Prospectus (other than financial
statements and other financial data) and all other legal matters relating to this Agreement
and the transactions contemplated hereby shall be satisfactory in all respects to ▇▇▇▇▇▇▇▇
& ▇▇▇▇▇▇▇▇ LLP, counsel for the Underwriters, and the Company shall have furnished to
such counsel all documents and information that they may reasonably request to enable
them to pass upon such matters.
(d) The Senior Executive Vice President and General Counsel to the
Company shall have furnished to the Representative his opinion addressed to the
Underwriters and dated the Delivery Date, as counsel, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware; each material
subsidiary of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its incorporation; and
each of the Company and its material subsidiaries has full corporate power and authority to
own its properties and conduct its business as described in the General Disclosure Package,
and is duly qualified to do business as a foreign corporation and is in good standing under
the laws of each jurisdiction which requires such qualification wherein it owns or leases
properties or conducts business, except where the failure to so qualify would not have a
material adverse effect on the Company and its subsidiaries taken as a whole;
(ii) the Indenture has been duly authorized, executed and delivered, has been
duly qualified under the Trust Indenture Act, and constitutes a legal, valid and binding
instrument enforceable against the Company in accordance with its terms (subject, as to
enforcement of remedies, to applicable bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium or other similar laws of general applicability relating to or
affecting creditors’ rights generally from time to time in effect and to general principles
of equity);
(iii) to the best knowledge of such counsel, there is no pending or threatened
action, suit or proceeding before any court or governmental agency, authority, body or any
arbitrator involving the Company or any of its subsidiaries of a character required to be
disclosed in the Registration Statement which is not adequately disclosed in the General
Disclosure Package, and there is no franchise,
-16-
contract or other document of a character required to be described in the Registration Statement or
the General Disclosure Package, or to be filed as an exhibit, which is not described or filed as
required; and the statements included or incorporated by reference in the General Disclosure
Package describing any legal proceedings or material contracts or agreements relating to the
Company or any of its subsidiaries fairly summarize such matters; the Underwritten Securities, the
Indenture and any Delayed Delivery Contracts conform to the descriptions thereof contained under
the following (or comparable) captions of the Prospectus: “Description of Debt Securities” and
“Plan of Distribution”;
(iv) the Immediate Delivery Underwritten Securities have been duly authorized, executed,
authenticated, issued and delivered and are valid and legally binding obligations of the Company
entitled to the benefits of the Indenture;
(v) the Delayed Delivery Underwritten Securities, if any, have been duly authorized and,
when executed, authenticated, issued and delivered to, and paid for by, the respective purchasers
thereof in accordance with the Indenture and the related Delayed Delivery Contracts, will be valid
and legally binding obligations of the Company entitled to the benefits of the Indenture;
(vi) the Registration Statement and any amendments thereto have become effective under the
Securities Act; to the best knowledge of such counsel, no stop order suspending the effectiveness
of the Registration Statement has been issued, no proceedings for that purpose have been instituted
or threatened, and the Registration Statement, the Prospectus and each amendment thereof or
supplement thereto as of their respective effective or issue dates (other than the financial
statements and other financial and statistical information contained therein as to which such
counsel need express no opinion) complied as to form in all material respects with the applicable
requirements of the Securities Act, the Exchange Act and the Trust Indenture Act and the respective
rules and regulations thereunder; such counsel has no reason to believe that the Registration
Statement, or any amendment thereof, at the effective date established by the Prospectus pursuant
to Rule 430B(f), at the date of this Agreement or at the Delivery Date, contained any untrue
statement of a material fact or omitted to state any material fact required to be stated therein or
necessary to make the statements therein not misleading; such counsel has no reason to believe that
the documents specified in a schedule to such counsel’s letter, consisting of those included in the
General Disclosure Package, as of the Applicable Time or at the Delivery Date, contained any untrue
statement of a material fact or omitted to state any material fact required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under which
they were made, not misleading; and such counsel has no reason to believe that the Prospectus, at
the date of this Agreement or at the Delivery Date, included or includes any untrue statement of a
material fact or omitted or omits to state a material fact necessary to make the
-17-
statements therein, in the light of the circumstances under which they were made,
not misleading;
(vii) this Agreement and the Delayed Delivery Contracts, if any, have been
duly authorized, executed and delivered by the Company;
(viii) no order, consent, approval, authorization, registration or
qualification of or with any governmental agency or body having jurisdiction over
the Company or any of its properties is required for the issue and sale of the
Underwritten Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such as have been obtained
under the Securities Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the sale and distribution of the
Underwritten Securities; and
(ix) neither the execution and delivery of the Indenture, this Agreement or
any Delayed Delivery Contracts, the issue and sale of the Underwritten Securities,
nor the consummation of any other of the transactions herein or therein contemplated
nor the fulfillment of the terms hereof or thereof will conflict with, result in a
breach of, or constitute a default under, the charter or by-laws of the Company or
the terms of any indenture or other agreement or instrument known to such counsel
and to which the Company or any of its material subsidiaries is a party or by which
the Company, any such subsidiary or any of their assets is bound, or any order or
regulation known to such counsel to be applicable to the Company or any such
subsidiary of any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company or any such subsidiary.
In rendering such opinion, such counsel may rely, as to the execution of the Indenture by the
Trustee, upon a certificate of the Trustee setting forth the facts as to such execution.
In rendering such opinion, such counsel may also rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Delaware, upon the opinion of other
counsel of good standing believed to be reliable, provided that such counsel states in such opinion
that such counsel and the Representative are justified in relying upon the opinion of such other
counsel, and (B) as to matters or fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials.
In rendering such opinion with respect to clause (viii) above, insofar as it relates to
regulatory authorities in the states in which the Company or any material subsidiary operates, such
counsel may rely on the opinions of local counsel satisfactory to such counsel.
(e) The Representative shall have received from ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, counsel
for the Underwriters, such opinion or opinions, dated the date hereof, with respect to the
issuance and sale of the Underwritten Securities, the Indenture, the
-18-
Registration Statement, the General Disclosure Package, the Prospectus and other related matters as
the Representative may reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representative a certificate
signed by its Chairman of the Board or its President or a Senior Vice President and its
Treasurer or an Assistant Treasurer stating that after reasonable investigation and to the
best of their knowledge:
(i) the representations and warranties of the Company in this Agreement are true
and correct in all material respects on and as of the Delivery Date with the same effect as
if made on the Delivery Date; the Company has complied with all the agreements and
satisfied all the conditions on its part to be performed or satisfied as a condition to the
obligation of the Underwriters to purchase the Underwritten Securities hereunder; and the
conditions set forth in Paragraphs 11(a) and 11(h) have been fulfilled;
(ii) as of the Applicable Time and as of the Delivery Date, the Registration
Statement and the General Disclosure Package did not include any untrue statement of a
material fact and did not omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading; and
(iii) since the date of the most recent financial statements included or
incorporated by reference in the General Disclosure Package, there has been no material
adverse change in the condition (financial or other), earnings, business or properties of
the Company or its subsidiaries, whether or not arising from transactions in the ordinary
course of business, except as set forth in or contemplated in the General Disclosure
Package.
(g) (i) The Company shall have furnished to the Representative letters of
Ernst & Young LLP, addressed to the Board of Directors of the Company and the
Underwriters and dated the date of this Agreement and the Delivery Date, respectively, of
the type described in the American Institute of Certified Public Accountants’ AU
Section 634 (“AU 634”); and (ii) the Representative shall have received a letter, dated the
Delivery Date and addressed to the Representative, of any other independent auditor
whose report is included or incorporated by reference in the Registration Statement of the
type described in AU 634, and in each of (i) and (ii), covering such financial statement
items as counsel for the Underwriters may reasonably have requested.
(h) No order, consent, approval, authorization, registration or qualification of or with
any governmental agency or body having jurisdiction over the Company or any of its properties is
required for the issue and sale of the Underwritten Securities or the consummation by the Company
of the transactions contemplated by this Agreement or the Indenture, except such as have been, or
will have been prior to the Delivery Date,
-19-
obtained under the Securities Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Underwritten
Securities by the Underwriters.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance satisfactory to the Representative.
12. If the Company shall fail to tender the Immediate Delivery Underwritten
Securities for delivery to the Underwriters for any reason permitted under this Agreement, or
if
the Underwriters shall decline to purchase the Immediate Delivery Underwritten Securities for
any reason permitted under this Agreement (other than pursuant to Paragraph 6 or
Paragraphs 10(a)-(d) hereof), the Company shall reimburse the Underwriters for the reasonable
fees and expenses of their counsel and for such other out-of-pocket expenses as shall have
been
incurred by them in connection with this Agreement and the proposed purchase of Immediate
Delivery Underwritten Securities and the solicitation of any purchases of the Delayed Delivery
Underwritten Securities, and upon demand the Company shall pay the full amount thereof to the
Representative. If this Agreement is terminated pursuant to Paragraph 6 hereof by reason of
the
default of one or more Underwriters or pursuant to Paragraphs
10(a)-(d) hereof, the Company shall not be obligated to reimburse any Underwriter on account of those expenses.
13. The Company shall be entitled to act and rely upon any request, consent, notice or
agreement by, or on behalf of, the Representative. Any notice by the Company to the
Underwriters shall be sufficient if given in writing or by facsimile transmission confirmed
promptly in writing addressed to the Representative at its address set forth in Schedule I
hereto,
and any notice by the Underwriters to the Company shall be sufficient if given in writing or
by
facsimile transmission confirmed promptly in writing addressed to the Company at AT&T Inc.,
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Telecopy Number:
(▇▇▇) ▇▇▇-▇▇▇▇, Attention of the Senior Vice President and Treasurer with a copy to the Senior
Executive Vice President and General Counsel, AT&T Inc., ▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Telecopy Number: (▇▇▇) ▇▇▇-▇▇▇▇.
14. This Agreement shall be binding upon the Underwriters, the Company and their
respective successors. This Agreement and the terms and provisions hereof are for the sole
benefit of only those persons, except that (a) the representations, warranties, indemnities
and
agreements of the Company contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act, and (b) the indemnity agreement of the Underwriters
contained
in Paragraph 9 hereof shall be deemed to be for the benefit of directors of the Company,
officers
of the Company who have signed the Registration Statement and any person controlling the
Company. Nothing in this Agreement is intended or shall be construed to give any person, other
than the persons referred to in this Paragraph 14, any legal or equitable right, remedy or
claim
under or in respect of this Agreement or any provision contained herein.
-20-
15. For purposes of this Agreement, “business day” means any day on which the New
York Stock Exchange, Inc. is open for trading.
16. This Agreement may be executed by the parties hereto in any number of
counterparts, each of which shall be deemed to be an original, but all such counterparts shall
together constitute one and the same instrument.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAW OF NEW YORK.
-21-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this Agreement shall represent a binding
agreement between the Company and the several Underwriters.
| Very truly yours, | ||||||
| AT&T INC. | ||||||
| By: | /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
|
|||||
| Senior Executive Vice President
and Chief Financial Officer |
||||||
The foregoing Agreement is hereby confirmed and accepted as of the date
first above written.
| BARCLAYS BANK PLC | ||||
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||
| Title: Authorised Attorney | ||||
| DEUTSCHE BANK AG, LONDON BRANCH | ||||
By:
|
/s/ ▇▇▇▇▇▇▇▇▇ Osatenko
|
|||
| Title: Vice President & Counsel | ||||
By:
|
/s/ ▇▇▇ ▇▇▇▇▇▇▇
|
|||
| Title: Vice President | ||||
| ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL | ||||
By:
|
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
|
|||
| Title: Authorised Signatory | ||||
SCHEDULE I
Underwriting Agreement, dated March 27, 2008 (the “Agreement”)
Registration Statement No. 333-143180
Applicable
Time: 12:15 p.m. (Eastern Time) on the date of the Agreement
Additional
information comprising the General Disclosure Package as defined in Section 1(e):
The final term sheet attached as Schedule IV.
The final term sheet attached as Schedule IV.
Representatives and Addresses:
Barclays Bank PLC
5 The North Colonnade
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
5 The North Colonnade
▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Deutsche Bank AG, London Branch
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
1 Great ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Centre ▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇ Financial Centre ▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Underwritten Securities:
| Designation: | 6.125% Global Notes due 2015 (the “Notes”) | |||
| Principal Amount: | €1,250,000,000 | |||
| Date of Maturity: | April 2, 2015 | |||
| Interest Rate: | 6.125% per annum | |||
| Interest Payment Dates: | Annually on April 2, commencing on ▇▇▇▇▇ ▇, ▇▇▇▇ | |||
| ▇▇▇▇▇▇▇▇ Price: | 99.601% | |||
| Price to Public: | 99.901% | |||
| Underwriting Discount: | 0.300% |
I-1
Reoffer Yield:
|
6.143% | |
Redemption Provisions:
|
None | |
Form/Clearing Systems:
|
The Notes will be issued only in registered, book-entry form. There will be a Global Note deposited with The Depository Trust Company (“DTC”) and an International Global Note deposited with a common depositary for Euroclear and Clearstream. Transfers between DTC and Euroclear or Clearstream will occur free of payment, via the Registrar. DTC will only make payments of interest and principal in U.S. dollars. Holders of beneficial interests through DTC may either elect to receive euro outside of DTC or will receive U.S. dollars converted at prevailing exchange rates. Any costs of conversion would be borne by the holders receiving U.S. dollars in DTC. | |
Delivery Date, Time
and Location:
|
9:00 a.m. (New York time) on April 3, 2008 at the offices of ▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP. | |
Offering Restrictions:
|
Each of the Underwriters severally represents and warrants to, and agrees with, the offering restrictions set forth in Schedule III hereto. | |
Additional Terms:
|
In addition to paragraph 10 of the Agreement, the obligations of the Underwriters under the Agreement may be terminated by the Representatives, in their absolute discretion, by notice given to and received by the Company prior to the delivery of and payment for the Notes, if, during the period beginning on the date of the Agreement to and including the Delivery Date, there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis or the declaration by the United States of war or a national emergency or any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which on the financial markets is material and adverse and is such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to market such Notes on the terms and in the manner contemplated by the Prospectus. |
I-2
SCHEDULE II
| Principal Amount | ||||
| Underwriters | of Notes | |||
Barclays Bank PLC |
€ | 416,750,000 | ||
Deutsche Bank AG, London Branch |
€ | 416,750,000 | ||
▇▇▇▇▇▇▇ ▇▇▇▇▇ International |
€ | 416,500,000 | ||
Total |
€ | 1,250,000,000 | ||
II-1
SCHEDULE III
OFFERING RESTRICTIONS
General
The Securities are offered for sale in the United States and in jurisdictions outside the
United States, subject to applicable law.
Each of the Underwriters has agreed that it will not offer, sell or deliver any of the
Securities, directly or indirectly, or distribute the prospectus supplement or the accompanying
prospectus or any other offering material relating to the Securities, in or from any jurisdiction
except under circumstances that will to the best knowledge and belief of such Underwriter result in
compliance with the applicable laws and regulations thereof and which will not impose any
obligations on the Company except as set forth in the Agreement.
United Kingdom
Each underwriter has represented and agreed that: (i) it has only communicated or caused to be
communicated and will only communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the Financial Services and
Markets ▇▇▇ ▇▇▇▇, known as “FSMA”) received by it in connection with the issue or sale of the
Securities in circumstances in which Section 21(1) of the FSMA does not apply to AT&T; and (ii) it
has complied and will comply with all applicable provisions of the FSMA with respect to anything
done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
European Union Prospectus Directive
In relation to each Member State of the European Economic Area (Iceland, Norway and
Liechtenstein, in addition to the member states of the European Union) which has implemented the
Prospectus Directive (each a “Relevant Member State”), each underwriter has represented and agreed
that with effect from and including the date on which the Prospectus Directive is implemented in
that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make
an offer of Securities to the public in that Relevant Member State prior to the publication of a
prospectus in relation to the Securities which has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in another Relevant Member State and notified
to the competent authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant Implementation Date,
make an offer of Securities to the public in that Relevant Member State at any time:
| • | to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; |
III-1
| • | to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; | ||
| • | to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the representatives for any such offer; or | ||
| • | in any other circumstances which do not require the publication by AT&T of a prospectus pursuant to Article 3 of the Prospectus Directive. |
For the purposes of this provision, the expression “an offer of Securities to the public” in
relation to any Securities in any Relevant Member State means the communication in any form and by
any means of sufficient information on the terms of the offer and the Securities to be offered so
as to enable an investor to decide to purchase or subscribe the Securities, as the same may be
varied in that Member State by any measure implementing the Prospectus Directive in that Member
State, and the expression “Prospectus Directive” means
Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
Japan
The Securities have not been and will not be registered under the Securities and Exchange Law
of Japan, and each of the Underwriters and each of its affiliates has represented and agreed that
it has not offered or sold, and it will not offer or sell, directly or indirectly, any of the
Securities in or to residents of Japan or to any persons for reoffering or resale, directly or
indirectly in Japan or to any resident of Japan, except pursuant to any exemption from the
registration requirements of the Securities and Exchange Law available thereunder and in compliance
with the other relevant laws and regulations of Japan.
Hong Kong
The Securities may not be offered or sold by means of any document other than to persons whose
ordinary business is to buy or sell shares or debentures, whether as principal or agent, or in
circumstances which do not constitute an offer to the public within the meaning of the Companies
Ordinance (Cap. 32) of Hong Kong, and no advertisement, invitation or document relating to the
Securities may be issued, whether in Hong Kong or elsewhere, which is directed at, or the contents
of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do
so under the securities laws of Hong Kong) other than with respect to Securities which are or are
intended to be disposed of only to persons outside Hong Kong or only to “professional investors”
within the meaning of the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules
made thereunder.
III-2
Singapore
The prospectus supplement has not been registered as a prospectus with the Monetary Authority
of Singapore. Accordingly, the prospectus supplement and any other document or material in
connection with the offer or sale, or invitation for subscription or purchase, of the Securities
may not be circulated or distributed, nor may the Securities be offered or sold, or be made the
subject of an invitation for subscription or purchase, whether directly or indirectly, to persons
in Singapore other than (i) to an institutional investor under Section 274 of the Securities and
Futures Act, Chapter 289 of Singapore (the “SFA”), (ii) to a relevant person, or any person
pursuant to Section 257(1A), and in accordance with the conditions, specified in Section 275 of
the SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other
applicable provision of the SFA.
Whether the Securities are subscribed or purchased under Section 275 by a relevant person
which is: (a) a corporation (which is not an accredited investor) the sole business of which is to
hold investments and the entire share capital of which is owned by one or more individuals, each of
whom is an accredited investor; or (b) a trust (where the trustee is not an accredited investor)
whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares,
debentures, and units of shares and debentures of that corporation or the beneficiaries’ rights and
interest in that trust shall not be transferable for six months after that corporation or that
trust has acquired the Securities under Section 275 except: (1) to an institutional investor under
Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(1A), and in
accordance with the conditions, specified in Section 275 of the SFA; (2) where no consideration is
given for the transfer; or (3) by operation of law.
III-3
Filed Pursuant to Rule 433
Registration No. 333-143180
Registration No. 333-143180
Final Term Sheet
March 27, 2008
March 27, 2008
Schedule IV
FINAL TERM SHEET
MARCH 27, 2008
MARCH 27, 2008
€1,250,000,000
AT&T INC.
6.125% GLOBAL NOTES DUE 2015
6.125% GLOBAL NOTES DUE 2015
ISSUER: |
AT&T Inc. (“AT&T”) | |
TITLE OF SECURITIES: |
6.125% Global Notes due 2015 (the “Notes”) | |
STRUCTURE: |
Senior unsecured | |
FORMAT: |
SEC-registered notes | |
ANNOUNCE DATE: |
March 27, 2008 | |
TRADE DATE: |
▇▇▇▇▇ ▇▇, ▇▇▇▇ | |
▇▇▇▇▇▇▇▇▇▇ DATE (T+5): |
▇▇▇▇▇ ▇, ▇▇▇▇ | |
▇▇▇▇▇▇▇▇ DATE: |
April 2, 2015 | |
REFERENCE GOVERNMENT
SECURITY: |
DBR 3.750% 1/15 | |
REFERENCE GOVERNMENT PRICE/RATE: |
99.835/3.776% | |
REOFFER
SPREAD TO GOVERNMENT SECURITY: |
236.7 bps | |
BENCHMARK: |
7-year mid swap rate | |
BENCHMARK RATE: |
4.243% | |
REOFFER SPREAD TO BENCHMARK: |
190 bps |
IV-1
AGGREGATE PRINCIPAL
AMOUNT OFFERED: |
€1,250,000,000 | |
PRICE TO PUBLIC (ISSUE
PRICE): |
99.901% | |
REOFFER YIELD: |
6.143% | |
FEES: |
30 bps | |
ALL-IN PRICE: |
99.601% | |
ALL-IN YIELD: |
6.197% | |
GROSS SPREAD: |
€3,750,000 | |
PRICE TO AT&T: |
99.601% | |
NET PROCEEDS: |
€1,245,012,500 | |
USE OF PROCEEDS: |
General corporate purposes | |
UNDERWRITERS’
REIMBURSEMENT OF AT&T’S EXPENSES: |
Underwriters to reimburse €250,000 of AT&T’s expenses | |
INTEREST RATE: |
6.125% | |
INTEREST PAYMENT DATE: |
April 2, annually | |
DENOMINATIONS: |
Minimum of €50,000 and integral multiples of €50,000 thereafter | |
TAX GROSS UP: |
Comparable to prior AT&T transactions. See Annex I. | |
TAX CALL: |
Comparable to prior AT&T transactions. See Annex I. | |
OPTIONAL REDEMPTION: |
None, except tax call | |
ISIN/COMMON CODE/CUSIP: |
XS0356044643/035604464/00206R AL6 | |
LISTING: |
AT&T intends to apply to list the Notes on the New York Stock Exchange. |
FORM/CLEARING SYSTEMS:
|
Registered form only (not bearer). | |
| There will be a DTC Global Note deposited with DTC and an International Global Note deposited with a common depositary for Euroclear and Clearstream. Transfers between DTC and Euroclear or Clearstream will occur free of payment, via the Registrar. | ||
| DTC will only make payments of interest and principal in U.S. dollars. Holders of beneficial interests through DTC may either elect to receive euro outside of DTC or will receive U.S. dollars converted at prevailing exchange rates. Any costs of conversion would be borne by the holders receiving U.S. dollars in DTC. | ||
DAY COUNT FRACTION:
|
Actual/ Actual (ICMA), following, unadjusted | |
RATINGS:
|
▇▇▇▇▇’▇: A2 (Stable), S&P: A (Stable), Fitch: A (Stable) | |
JOINT BOOKRUNNERS:
|
Barclays Bank PLC, Deutsche Bank AG, London Branch and ▇▇▇▇▇▇▇ ▇▇▇▇▇ International |
ALLOCATION:
| 6.125% Global Notes | ||
| due 2015 | ||
Barclays Bank PLC
|
€ 416,750,000 | |
Deutsche Bank AG, London Branch
|
€ 416,750,000 | |
▇▇▇▇▇▇▇ ▇▇▇▇▇ International
|
€ 416,500,000 | |
| €1,250,000.000 | ||
REFERENCE DOCUMENT:
|
Prospectus dated May 23, 2007. |
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE SEC
FOR THE OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU SHOULD READ
THE PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER HAS FILED
WITH THE SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER AND THIS OFFERING. YOU MAY
GET THESE DOCUMENTS FOR FREE BY VISITING ▇▇▇▇▇ ON THE SEC WEB SITE AT ▇▇▇.▇▇▇.▇▇▇.
ALTERNATIVELY, THE ISSUER, ANY UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING
WILL ARRANGE TO SEND YOU THE PROSPECTUS IF YOU REQUEST IT BY CALLING TOLL-FREE BARCLAYS
BANK PLC AT ▇▇-(▇▇▇)-▇▇▇-▇▇▇▇, EXT. 2663, DEUTSCHE BANK AG, LONDON BRANCH AT
▇▇-(▇▇▇)-▇▇▇-▇▇▇▇, OR ▇▇▇▇▇▇▇ ▇▇▇▇▇ INTERNATIONAL AT ▇▇-(▇▇▇)-▇▇▇-▇▇▇▇.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS
COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE
AUTOMATICALLY GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR
ANOTHER EMAIL SYSTEM.
ANNEX I
Redemption for Taxation Reasons
If (a) as a result of any change in, or amendment to, the laws or regulations of a Relevant
Jurisdiction (as defined below under “Interpretation”), or any change in the official
interpretation of the laws or regulations of a Relevant Jurisdiction, which change or amendment
becomes effective after 27th March 2008, on the next Interest Payment Date AT&T would be required
to pay additional amounts as provided or referred to below under “Payment Without Withholding” and
(b) the requirement cannot be avoided by AT&T taking reasonable measures available to it, AT&T may
at its option, having given not less than 30 nor more than 60 days’ notice to the holders of Notes
(which notice shall be irrevocable), redeem all the Notes, but not some only, at any time at their
principal amount together with interest accrued to, but excluding, the date of redemption provided
that no such notice of redemption shall be given earlier than 90 days prior to the earliest date on
which AT&T would be obliged to pay such additional amounts were a payment in respect of the Notes
then due. Prior to the publication of any notice of redemption pursuant to this paragraph, AT&T
shall deliver to the trustee a certificate signed by two Executive Officers of AT&T stating that
the requirement referred to in (a) above will apply on the next Interest Payment Date and setting
forth a statement of facts showing that the conditions precedent to the right of AT&T so to redeem
have occurred cannot be avoided by AT&T taking reasonable measures available to it and an opinion
of independent legal advisers of recognized international standing to the effect that AT&T has or
will become obliged to pay such additional amounts as a result of the change or amendment, in each
case to be held by the trustee and made available for viewing at the offices of the trustee on
request by any holder of Notes.
Payment Without Withholding
All payments in respect of the Notes by or on behalf of AT&T shall be made without withholding or
deduction for, or on account of, any present or future taxes, duties, assessments or governmental
charges of whatever nature (“Taxes”) imposed, collected, withheld, assessed or levied by or on
behalf of the Relevant Jurisdiction, unless the withholding or deduction of the Taxes is required
by law. In that event, AT&T will pay
such additional amounts to a holder who is a United States Alien (as defined below) as may be
necessary in order that the net amounts received by the holder after the withholding or deduction
shall equal the respective amounts which would have been receivable in respect of the Notes in the
absence of the withholding or deduction; except that no such additional amounts shall be payable in
relation to any payment in respect of any Note:
(a) where such withholding or deduction would not have been so imposed but for:
(i) in the case of payment by AT&T, the existence of any present or former connection
between the holder of the Note (or between a fiduciary, settlor, shareholder, beneficiary or
member of the holder of the Note, if such holder is an estate, a trust, a corporation or a
partnership) and the United States, including, without limitation, such holder (or such
A-1
fiduciary, settlor, shareholder, beneficiary or member) being or having been a citizen or
resident or treated as a resident thereof, or being or having been engaged in
trade or business or presence therein, or having or having had a permanent establishment therein;
(ii) in the case of payment by AT&T, the present or former status of the holder of the Note
as a personal holding company, a foreign personal holding company, a passive foreign
investment company, or a controlled foreign corporation for United States federal income tax
purposes or a corporation which accumulates earnings to avoid United States federal income
tax;
(iii) in the case of payment by AT&T, the past or present or future status of the holder of
the Note as the actual or constructive owner of 10% or more of either the total combined
voting power of all classes of stock of AT&T entitled to vote if AT&T was treated as a
corporation, or the capital or profits interest in AT&T, if AT&T is treated as a partnership
for United States federal income tax purposes or as a bank receiving interest described in
Section 881(c) (3) (A) of the Internal Revenue Code of 1986, as amended; or
(iv) the failure by the holder of the Note to comply with any certification, identification
or other reporting requirements concerning the nationality, residence, identity or
connection with the United States (in the case of payment by AT&T) of such holder, if
compliance is required by statute or by regulation as a precondition to exemption from such
withholding or deduction;
(b) in the case of payment by AT&T to any United States Alien, if such person is a fiduciary or
partnership or other than the sole beneficial owner of any such payment, to the extent that a
beneficiary or settlor with respect to such fiduciary, a member of such partnership or the
beneficial owner would not have been entitled to the additional amounts had such beneficiary,
settlor, member or beneficial owner been the bearer of such Note. As used herein, “United States
Alien” means any person who, for United States federal income tax purposes, is a foreign
corporation, a non-resident alien individual, a non-resident alien fiduciary of a foreign estate or
trust, or a foreign partnership one or more of the members of which is, for United States federal
income tax purposes, a foreign corporation, a non-resident alien individual or a non-resident
alien fiduciary of a foreign estate or trust;
(c) to the extent that the withholding or deduction is as a result of the imposition of any
gift,
inheritance, estate, sales, transfer, personal property or any similar tax, assessment or
other
governmental charge;
(d) to, or to a third party on behalf of, a holder who is liable for the Taxes in respect of the
Note
by reason of his having any or some present or former connection, including but not limited to
fiscal residency, fiscal deemed residency and substantial interest shareholdings, with the
Relevant Jurisdiction, other than the mere holding of the Note;
A-2
(e) presented for payment more than 30 days after the Relevant Date except to the extent that a
holder would have been entitled to additional amounts on presenting the relevant Note for
payment on the last day of the period of 30 days assuming that day to have been an Interest
Payment Date;
(f) any tax, assessment or other governmental charge required to be withheld by any paying
agent from any payment of principal or of interest on any Note, if such payment can be made
without withholding by any other paying agent; or
(g) any combination of (a), (b), (c), (d), (e) and
(f).
Interpretation
In this provision:
(a) “Relevant Date” means the date on which the payment first becomes due but, if the full
amount of the money payable has not been received by the trustee on or before the due date, it
means the date which is seven days after the date on which, the full amount of the money having
been so received, notice to that effect shall have been duly given to the holders of Notes by
AT&T; and
(b) “Relevant Jurisdiction” means the State of Delaware and the United States or any political
subdivision or any authority thereof or therein having power to tax or any other jurisdiction or
any political subdivision or any authority thereof or therein having power to tax to which AT&T
becomes subject in respect of payments made by it of principal and interest on the Notes.
Additional Amounts
Any reference in the terms of the Notes to any amounts in respect of the Notes shall be deemed also
to refer to any additional amounts which may be payable under this provision.
A-3
EXHIBIT A
AT&T INC.
DELAYED DELIVERY CONTRACT
, 200_
AT&T Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from AT&T Inc., a Delaware corporation (the
“Company”), and the Company hereby agrees to sell to the undersigned, $ principal amount
of the Company’s above-captioned securities (“Securities”), offered by the Company’s
prospectus, dated , as supplemented by the prospectus supplement, dated
(collectively, the “Prospectus”), receipt of a copy of which is hereby acknowledged, at a purchase
price of % of the principal amount thereof plus accrued interest from to the Delivery Date (as
defined in the next paragraph) and on the further terms and conditions set forth in this Contract.
Payment for and delivery of the Securities to be purchased by the undersigned shall be
made on , 200 , herein called the “Delivery Date”.
At 10:00 A.M., New York time, on the Delivery Date, the Securities to be purchased by the
undersigned hereunder will be delivered by the Company to the undersigned, and the undersigned will
accept delivery of such Securities and will make payment to the Company of the purchase price
therefore at the office of The Bank of New York. Payment will be by certified or official bank
check or wire transfer payable in Federal (same day) funds settled through the New York Clearing
House, or such other Clearing House as the Company may designate, to or upon the order of the
Company. The Securities will be delivered in such authorized forms and denominations and registered
in such names as the undersigned may designate by written or telegraphic communication addressed to
the Company not less than two full business days prior to the Delivery Date or, if the undersigned
fails to make a timely designation in the foregoing manner, in the form of one definitive fully
registered certificate representing the Securities in the above principal amount, registered in the
name of the undersigned.
A-4
This Contract will terminate and be of no further force and effect after , 200 ,
unless (i) on or before such date it shall have been executed and delivered by both parties hereto
and (ii) the Company shall have sold to the Underwriters named in the Prospectus the Immediate
Delivery Underwritten Securities (as defined in the Underwriting Agreement referred to in the
Prospectus). The Company will mail or deliver to the undersigned at its address set forth below a
notice to that effect, stating the date of the occurrence thereof, accompanied by copies of the
opinion of counsel for the Company delivered to such Underwriters
pursuant to Paragraph 11(d) of
the Underwriting Agreement.
The obligation of the undersigned to accept delivery of and make payment for the Securities on
the Delivery Date will be subject to the condition that the Securities shall not, on the Delivery
Date, be an investment prohibited by the laws of the jurisdiction to which the undersigned is
subject, the undersigned hereby representing that such an investment is not so prohibited on the
date hereof.
This Contract will inure to the benefit of and be binding upon the parties hereto and their
respective successors but will not be assignable by either party hereto without the written consent
of the other.
This Contract may be executed by any of the parties hereto in any number of counterparts,
each of which shall be deemed to be an original, but all such counterparts shall together
constitute one and the same instrument.
It is understood that acceptance of any Delayed Delivery Contract (as defined in said
Underwriting Agreement) is in the Company’s sole discretion and, without limiting the foregoing,
need not be on a first-come, first-served basis. If this Contract is acceptable to the
A-5
Company, it is requested that the Company sign the form of acceptance below and mail or deliver one
of the counterparts hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart is so mailed or
delivered.
| Very truly yours, | ||||
| By | ||||||
| Title | ||||||
| Address | ||||||
Accepted
as of , 200
AT&T INC.
By |
||||
A-6