ALLTEL CORPORATION
(a Delaware corporation)
Offering of up to $___________________
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
ALLTEL Corporation (the "Company") proposes to issue and sell up to
$__________________ aggregate principal amount of its debt securities under an
Indenture dated as of January 1, 1987, by and between the Company and Chase
Manhattan Trust Company, National Association, successor to Society National
Bank, as Trustee, as supplemented by a First Supplemental Indenture dated as of
March 1, 1987, a Second Supplemental Indenture dated as of April 1, 1989, a
Third Supplemental Indenture dated as of May 8, 1990, a Fourth Supplemental
Indenture dated as of March 1, 1991, a Fifth Supplemental Indenture dated as of
October 15, 1993, a Sixth Supplemental Indenture dated as of April 1, 1994, a
Seventh Supplemental Indenture dated as of September 1, 1995, an Eighth
Supplemental Indenture dated as of March 1, 1996, and a Ninth Supplemental
Indenture dated as of ____________________, 1998 (collectively, the
"Indenture").
This is to confirm the arrangements with respect to the purchase of
debt securities from the Company by the Representatives and the several
Underwriters listed in the applicable terms agreement entered into between the
Representatives and the Company of which these Basic Provisions are Annex A
thereto (the "Terms Agreement"). The Terms Agreement, together with the
provisions hereof incorporated therein by reference, is herein referred to as
the "Agreement" and the debt securities subject to the Terms Agreement are
herein referred to as the "Securities." Terms defined in the Terms Agreement are
used herein as therein defined. If the Securities are to be purchased by an
underwriting syndicate, the term "Representatives" as used herein shall mean the
representatives of the members of the underwriting syndicate, and the term
"Underwriters" shall mean all the members of the underwriting syndicate,
including the Representatives. If the Securities are being purchased by one or
more underwriters and not by an underwriting syndicate, the terms
"Representatives" and "Underwriters" shall mean such underwriters. The terms
"Underwriters" and "Representatives" shall be interpreted in the singular or
plural, as appropriate in the context of the Terms Agreement.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 in respect of the Securities
and the offering thereof from time to time in accordance with Rule 415 under the
Securities Act of 1933, as amended (the "Securities Act"), and has filed such
amendments thereto as may have been required to the date of the Terms Agreement.
Such registration statement, as so amended, and the prospectus constituting a
part thereof (including, in each case, all documents incorporated therein by
reference) as they are from time to time amended or supplemented by the filing
of documents pursuant to the Securities Act (including the Prospectus
Supplement, as defined below) or the Securities Exchange Act of 1934, as amended
(the "1934 Act")), are hereinafter called the "Registration Statement" and the
"Prospectus," respectively.
Section 1. Representations and Warranties of the Company. The Company
represents and warrants to the Representatives and each other Underwriter named
in the Terms Agreement as of the date thereof (the "Representation Date") that:
(a) At the time the Registration Statement became effective
and as of the Representation Date, the Registration Statement and the
Prospectus complied with the provisions of the Securities Act, the
Trust Indenture Act of 1939 (the "1939 Act") and the rules and
regulations of the Commission thereunder (the "Regulations"), and the
Indenture was qualified under the 1939 Act. At the time the
Registration Statement became effective and as of the Representation
Date, the Registration Statement did not, and will not during the
period specified in Section 3(b), contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. The
Prospectus, at the time the Registration Statement became effective and
as of the Representation Date, did not, and will not during the period
specified in Section 3(b), contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading; provided, however, that none of the
representations and warranties in this subsection shall apply to
statements in or omissions from the Registration Statement or the
Prospectus made in reliance upon and in conformity with information
furnished to the Company in writing by an Underwriter expressly for use
in the Registration Statement or the Prospectus.
(b) The documents incorporated by reference in the Prospectus,
at the time they were or hereafter are filed with the Commission,
complied and will comply at all times during the period specified in
Section 3(b) in all material respects with the requirements of the 1934
Act and the rules and regulations of the Commission thereunder (the
"1934 Act Regulations") and, when read together with the other
information in the Prospectus, at the time the Registration Statement
became effective and as of the Representation Date, did not, and will
not during the period specified in Section 3(b), include an untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading.
(c) The accountants who certified or who will certify the
financial statements included in the Registration Statement are, or
will be, with respect to the Company and its subsidiaries, independent
public accountants as required by the Securities Act and the
Regulations.
(d) The financial statements included in the Registration
Statement and Prospectus present fairly the financial position of the
Company and its consolidated subsidiaries as of the dates indicated and
the results of their operations for the periods specified and have been
prepared in conformity with generally accepted accounting principles
applied on a basis which is consistent in all material respects during
the periods involved, and the supporting schedules included in the
Registration Statement present fairly the information required to be
stated therein.
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(e) Neither the Company nor any subsidiary has a contingent
liability which is material to the Company and its subsidiaries
considered as one enterprise and which is not disclosed in the
Registration Statement and Prospectus.
(f) Since the respective dates as of which information is
given in the Registration Statement and the Prospectus except as may
otherwise be stated therein: (i) there has not been any material
adverse change, nor does the Company have reason to believe that any
material adverse change will occur, in the condition, financial or
otherwise, of the Company and its subsidiaries considered as one
enterprise, or in the business, properties, operations, income or
business prospects of the Company and its subsidiaries considered as
one enterprise, whether or not arising in the ordinary course of
business, (ii) neither the Company nor any of its subsidiaries has
entered into a transaction, other than transactions in the ordinary
course of business, which is material in relation to the Company and
its subsidiaries considered as one enterprise, (iii) there has not been
any dividend or distribution of any kind declared, paid or made by the
Company on its capital stock, other than normal cash dividends, (iv)
neither the Company nor any subsidiary has incurred any liabilities or
obligations (direct or contingent) which are material to the Company
and its subsidiaries considered as one enterprise, except in the
ordinary course of business, (v) there has not been any change in the
capital stock (other than by reason of the exercise of stock options
outstanding at the latest date as of which information is given in the
Registration Statement or the Prospectus, the conversion of preferred
stock or debentures outstanding at the latest date as of which
information is given in the Registration Statement or the Prospectus,
the issuance of shares pursuant to the Company's employee stock
purchase plan or employee stock ownership plan), any material increase
in the short-term indebtedness of the Company and its subsidiaries or
any increase in the long-term indebtedness of the Company and its
subsidiaries considered as one enterprise (other than indebtedness
incurred periodically pursuant to the Company's $1,000,000,000
revolving credit agreement or pursuant to a loan program administered
by the Rural Utilities Service), (vi) no action, suit or proceeding, at
law or in equity, is pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries,
and no proceedings are pending or, to the knowledge of the Company,
threatened against or affecting the Company or any of its subsidiaries
before or by any governmental commission, board or other administrative
agency, wherein an unfavorable decision, ruling or finding would
materially adversely affect the consummation of this Agreement or the
business, properties, operations, financial condition, income or
business prospects of the Company and its subsidiaries considered as
one enterprise, (vii) neither the Company nor any of its subsidiaries
has sustained a loss of, or damage to, its properties (whether or not
insured) which would materially adversely affect the business,
operations, financial condition, income or business prospects of the
Company and its subsidiaries considered as one enterprise, and (viii)
no labor disturbance by the employees of the Company or any of its
subsidiaries has arisen or been threatened which might materially
adversely affect the business, operations, financial condition, income
or business prospects of the Company and its subsidiaries considered as
one enterprise.
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(g) The Company has been duly organized and is validly
existing as a corporation in good standing under the laws of the State
of Delaware with full power and authority to own, lease and operate its
properties, to conduct its business as described in the Registration
Statement, to issue and sell the Securities and to enter into and
perform this Agreement; each 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 with full power
to own, lease and operate its properties and conduct its business as
described in the Registration Statement; the Company and each of its
subsidiaries is duly qualified to transact business and is in good
standing in each of the jurisdictions in which the conduct of its
business or the ownership, leasing or operation of its properties or
the existence of an office requires such qualification, except where
the failure to so qualify would not have a material adverse effect on
the Company and its subsidiaries considered as one enterprise; each
subsidiary of the Company has municipal consents or franchises, free
from unduly burdensome restrictions which, together with its corporate
powers, are adequate to enable it to carry on its operations in the
territory served by the subsidiary; and all of the issued and
outstanding capital stock of each subsidiary of the Company has been
duly authorized and validly issued and is fully paid and nonassessable,
and the stock of such subsidiaries owned by the Company is free and
clear of any mortgages, pledges, liens, encumbrances, claims or
equities whatsoever (other than pledges of stock of subsidiaries
securing acquisition indebtedness not in excess of $2,000,000).
(h) This Agreement has been duly authorized, executed and
delivered on behalf of the Company and is the valid and legally binding
obligation of the Company enforceable in accordance with its terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
or other laws relating to or affecting enforcement of creditors' rights
and by general equity principles.
(i) The Securities have been duly authorized for issuance and
sale pursuant to this Agreement (or will have been so authorized prior
to their issuance) and, when issued, authenticated and delivered
pursuant to the provisions of this Agreement and of the Indenture
against payment of the consideration therefor in accordance with this
Agreement, the Securities will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
except as enforcement thereof may be limited by bankruptcy, insolvency
or other laws relating to or affecting enforcement of creditors' rights
and by general equity principles and will be entitled to the benefits
provided by the Indenture.
(j) The Company is not in violation of its certificate of
incorporation or bylaws, and neither the Company nor any of its
subsidiaries is in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
bond, debenture, note or other evidence of indebtedness or in any
contract, indenture, mortgage, loan agreement, lease, joint venture
agreement or other agreement or instrument to which the Company or any
of its subsidiaries is a party or by which any of them or any of their
properties may be bound, or in violation of any material statute,
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order, rule, regulation, writ, injunction or decree of any government,
governmental instrumentality or court, domestic or foreign, and the
compliance with the terms of this Agreement and the Indenture, the
incurrence of the obligations herein and therein set forth and the
consummation of the transactions herein and therein contemplated will
not violate the certificate of incorporation or code of regulations or
bylaws of the Company or any of its subsidiaries or conflict with or
result in a breach of or default in the performance or observance of
any obligation, agreement, covenant or condition contained in any bond,
debenture, note or other evidence of indebtedness or any contract,
indenture, mortgage, loan agreement, lease, joint venture agreement or
other agreement or instrument to which the Company or any of its
subsidiaries is a party or by which any of them or any of their
properties may be bound or violate any statute, order, rule,
regulation, writ, injunction or decree of any government, governmental
instrumentality or court, domestic or foreign.
(k) No approval of any court, governmental agency or public
regulatory body is necessary in connection with the issue and sale of
the Securities, except such as may be required under state or federal
securities or "blue sky" laws and such as have already been received.
(l) There is no contract or document required to be described
in the Registration Statement, or to be filed as an exhibit to the
Registration Statement, which is not described or filed as required.
(m) The Company or a subsidiary has good title to all of the
properties and assets reflected in the consolidated balance sheet of
the Company included in the Registration Statement, except properties
and assets sold or otherwise disposed of in the ordinary course of
business after such date, subject to no mortgages, liens, charges or
encumbrances of any nature whatsoever other than as disclosed in the
Registration Statement (other than minor defects and encumbrances
customarily found in the case of properties of like size and character
which do not impair the use of such properties by the Company or its
subsidiaries).
Any certificate signed by any officer of the Company and delivered to
the Underwriters or to counsel for the Underwriters shall be deemed a
representation and warranty by the Company to each Underwriter as to the matters
covered thereby.
Section 2. Purchase and Sale. The obligation of the Underwriters to
purchase, and the Company to sell, the Securities is evidenced by the Terms
Agreement. The Terms Agreement specifies the principal amount of the Securities,
the names of the Underwriters participating in the offering (subject to
substitution as provided in Section 11 hereof) and the principal amount of
Securities which each severally has agreed to purchase, the purchase price to be
paid by the Underwriters, the initial public offering price, if any, of the
Securities and any terms of the Securities not already specified in the
Indenture (including, but not limited to, designation, denominations, current
ratings, interest rates and payment dates, maturity and redemption provisions
and sinking fund requirements).
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Payment of the purchase price for the Securities to be purchased by the
Underwriters shall be made, against delivery of the Securities through the
facilities of the Depository Trust Company (the "Depository"), at the offices of
▇▇▇▇▇▇▇▇ Inc., Little Rock, Arkansas, at 9:00 a.m., Little Rock time, on the
third business day following the date of the Terms Agreement or at such other
place, time and date as the Representatives and the Company may agree upon. (The
date designated for the payment of the purchase price and the delivery of the
Securities is referred to herein as the "Closing Date"). Payment for the
Securities shall be by federal wire transfer in same-day funds. The Securities
shall be delivered to the Underwriters in the form of one or more global
securities registered in the name of the Depository or its nominee. For the
purpose of expediting the checking of the Securities by the Representatives, the
Company agrees to make the Securities available to the Depository not later than
12:00 noon, Little Rock time, on the business day before the Closing Date.
Section 3. Covenants of the Company. The Company agrees that:
(a) Immediately following the execution of the Terms
Agreement, the Company will prepare a supplement to the Prospectus (the
"Prospectus Supplement") setting forth the principal amount of
Securities covered thereby and their terms not otherwise specified in
the Indenture, the names of the Underwriters participating in the
offering and the principal amount of Securities which each severally
has agreed to purchase, the names of the Underwriters, if any, acting
as co-managers in connection with the offering, the price at which the
Securities are to be purchased by the Underwriters from the Company,
the initial public offering price, if any, the selling concession and
reallowance, if any, and such other information as the Representatives
and the Company deem appropriate in connection with the offering of the
Securities. The Company will promptly transmit copies of the Prospectus
Supplement to the Commission for filing pursuant to Rule 424 of the
Regulations and will furnish to the Underwriters named therein as many
copies of the Prospectus and such Prospectus Supplement as the
Representatives shall reasonably request.
(b) If at any time when the Prospectus is required by the
Securities Act to be delivered in connection with sales of the
Securities any event shall occur as a result of which it is necessary
to further amend or supplement the Prospectus so that it does not
contain an untrue statement of material fact, or does not omit to state
a material fact necessary to make the statements therein, in the light
of the circumstances existing at the time it is delivered to a
purchaser, not misleading, or, if it shall be necessary at any such
time to amend or supplement the Registration Statement or the
Prospectus in order to comply with the requirements of the Securities
Act or the Regulations, the Company will promptly notify each
Underwriter and prepare and file with the Commission such amendment or
supplement, whether by filing documents pursuant to the 1934 Act or
otherwise, as may be necessary in order to make the Prospectus not
misleading or cause the Registration Statement to comply with such
requirements; provided that no such amendment or supplement will be
filed with the Commission without the prior consent of the
Representatives.
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(c) During the period specified in Section 3(b), the Company
will notify each Underwriter immediately and confirm the notice in
writing (i) when any amendment to the Registration Statement shall have
become effective, (ii) of the transmission, mailing or other delivery
to the Commission for filing of any supplement to the Prospectus or any
document to be filed pursuant to the 1934 Act, (iii) of the receipt of
any comments from the Commission with respect to the Registration
Statement or the Prospectus, (iv) of any request, written or oral, by
the Commission or any state securities regulatory authority for any
amendment to the Registration Statement or any amendment or supplement
to the Prospectus or for additional information and (v) of the issuance
by the Commission or any state securities regulatory authority of any
stop order suspending the effectiveness of the Registration Statement
or of the initiation of any proceedings for that purpose. The Company
will make every reasonable effort to prevent the issuance by the
Commission or any state securities regulatory authority of any stop
order during the period specified in Section 3(b) and, if any such stop
order shall at any time be issued, to obtain the lifting thereof at the
earliest possible moment.
(d) The Company will deliver to each Underwriter and to
counsel for the Underwriters, as soon as available, one signed copy of
the Registration Statement as originally filed and one signed copy of
all amendments thereto filed during the period specified in Section
3(b) (in each case including all exhibits and other documents filed
therewith or incorporated by reference therein).
(e) During the period specified in Section 3(b), the Company
will deliver to the Underwriters, in accordance with the
Representatives' instructions, as many copies of the Prospectus as the
Underwriters may reasonably request.
(f) The Company, during the period specified in Section 3(b),
will file promptly all documents required to be filed with the
Commission pursuant to Sections 13(a), 13(c), 14 or 15(d) of the 1934
Act; provided that such documents must be satisfactory to counsel for
the Underwriters.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 90 days after the
close of the period covered thereby, an earnings statement (in form
complying with the provisions of Section 11(a) of the Securities Act,
which need not be certified by independent public accountants) covering
a period of 12 months commencing not later than the first day of the
calendar quarter following the effective date of the Registration
Statement.
(h) The Company will endeavor, in cooperation with the
Underwriters, to qualify the Securities for offering and sale under the
applicable securities laws of such jurisdictions as the Representatives
may designate; provided, however, that the Company shall not be
obligated to file any general consent to service of process or to
qualify as a foreign corporation or as a dealer in securities in any
jurisdiction in which it is not so qualified. In each jurisdiction in
which Securities have been qualified as above provided, the Company
will make and file such statements and reports in each year as are or
may be reasonably required by the laws thereof.
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(i) Between the date of the Terms Agreement and the Closing
Date, the Company will not, without the prior consent of the
Representatives, offer or sell, or enter into any agreement to sell,
any debt securities of the Company having an original maturity of one
year or more.
Section 4. Payment of Expenses. The Company will pay all expenses
incident to the performance of its obligations under this Agreement, including
expenses in connection with (i) the preparation, printing and filing of the
Registration Statement and Prospectus and the printing of this Agreement, the
Securities and the Indenture, (ii) the issuance and delivery of the Securities
to the Underwriters, including transfer agents' and registrars' fees, (iii) the
fees and disbursements of the Company's counsel and accountants, (iv) the
qualification of the Securities under securities laws in accordance with the
provisions of Section 3(h), including filing fees and the fees and disbursements
of counsel for the Underwriters in connection therewith and in connection with
the preparation of the Blue Sky Memorandum, (v) the printing and delivery to the
Underwriters, in quantities as hereinabove stated, of copies of the Registration
Statement and any amendments thereto and of the Prospectus and any amendments or
supplements thereto and (vi) the printing and delivery to the Underwriters of
copies of the Blue Sky Memorandum to be prepared by counsel for the
Underwriters.
If this Agreement is cancelled by the Underwriters in accordance with
the provisions of Section 5 or by the Company in accordance with the provisions
of Section 6 or is terminated by the Underwriters in accordance with the
provisions of Section 10(b)(i) or is terminated by the Company in accordance
with the provisions of Section 10(a), the Company shall reimburse the
Underwriters for all of their out-of-pocket expenses, including the reasonable
fees and disbursements of counsel for the Underwriters.
Section 5. Conditions of Underwriters' Obligations. The several
obligations of the Underwriters hereunder to purchase and pay for Securities on
the Closing Date are subject to the accuracy, as of the date of the Agreement
and as of the Closing Date, of the representations and warranties of the
Company, to the performance by the Company of its obligations hereunder, and to
the following conditions:
(a) At the Closing Date (i) no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the Securities Act or proceedings therefor initiated or
threatened by the Commission, (ii) the debt securities or preferred
stock of the Company shall not (a) have been placed on "credit watch"
by any nationally recognized securities rating agency ("NRSRA") or (b)
had the rating assigned to them by any NRSRA lowered from the rating in
place at the time of the execution of the Terms Agreement and (iii)
there shall not have come to the attention of the Representatives any
facts that would cause the Representatives to believe that the
Prospectus, together with the Prospectus Supplement, at the time it was
required to be delivered to a purchaser of the Securities, contained an
untrue statement of a material fact or omitted to state a material fact
necessary in order to make the statements therein, in light of the
circumstances existing at such time, not misleading.
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(b) At the Closing Date, the Underwriters shall have received:
(1) The favorable opinion of Friday, ▇▇▇▇▇▇▇▇ &
▇▇▇▇▇, counsel for the Company, dated the Closing Date, in
form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) the Company has been duly organized and
is validly existing as a corporation in good standing
under the laws of the State of Delaware, and has full
corporate power and authority to conduct the business
in which it is engaged, to own, lease and operate the
properties used by it in such business, to issue and
sell the Securities and to enter into and perform
this Agreement;
(ii) this Agreement has been duly authorized
by, and duly executed and delivered on behalf of, the
Company;
(iii) the Indenture has been duly authorized
by, and duly executed and delivered on behalf of, the
Company, and constitutes the valid and binding
agreement of the Company, enforceable in accordance
with its terms, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws
relating to or affecting enforcement of creditors'
rights and by general equity principles;
(iv) the Securities are in the form
authorized in the Indenture; the Securities have been
duly authorized by all necessary corporate action
and, when the Securities have been executed and
authenticated as specified in the Indenture and
delivered against payment pursuant to this Agreement,
will be valid and binding obligations of the Company,
enforceable in accordance with their terms, except as
enforcement thereof may be limited by bankruptcy,
insolvency or other laws relating to or affecting
enforcement of creditors' rights and by general
equity principles, and the holders of the Securities
will be entitled to the benefits of the Indenture;
(v) the Indenture and the Securities conform
in all material respects to the descriptions thereof
in the Prospectus and the applicable Prospectus
Supplement;
(vi) the Indenture is qualified under the
1939 Act;
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(vii) no approval, authorization, consent or
order of, or registration or filing with, any court,
governmental agency or other public board or body is
legally required for the issuance and sale of the
Securities by the Company or the performance of this
Agreement by the Company, except such as may be
required under State or federal securities or "blue
sky" laws and such as have already been received;
(viii) the Registration Statement is
effective under the Securities Act, and, to the best
of their knowledge, no stop order suspending the
effectiveness of the Registration Statement has been
issued and no proceedings for a stop order are
pending or threatened under Section 8(d) of the
Securities Act;
(ix) at the time the Registration Statement
became effective and as of the date of the Terms
Agreement, the Company satisfied the requirements
under the Securities Act for use of a Registration
Statement on Form S-3, the Registration Statement
(other than the financial statements included
therein, as to which no opinion need be rendered)
complied as to form in all material respects with the
requirements of the Securities Act, the 1939 Act and
the Regulations regarding registration statements on
Form S-3 and related prospectuses, and nothing has
come to their attention that would lead them to
believe that the Registration Statement, at the time
it became effective (or if an amendment to the
Registration Statement or an annual report on Form
10-K has been filed by the Company with the
Commission subsequent to the effectiveness of the
Registration Statement, at the time of the most
recent filing), and as of the date of the Terms
Agreement, contained an untrue statement of a
material fact or omitted to state a material fact
required to be stated therein or necessary to make
the statements therein not misleading, or that the
Prospectus, at the date of the Terms Agreement and at
the Closing Date, contains an untrue statement of a
material fact or omits to state a material fact
required to be stated therein or necessary to make
the statements therein, in the light of the
circumstances under which they were made, not
misleading;
(x) to the best of their knowledge, there
are no contracts, instruments or documents of a
character required to be described in the
Registration Statement or to be filed as exhibits
thereto other than those described or filed;
(xi) to the best of their knowledge, there
are no legal or governmental proceedings pending or
threatened of a character which should be disclosed
in the Registration Statement;
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(xii) the statements in the Prospectus under
the caption "Description of Securities" have been
prepared or reviewed by them, are correct and fairly
present the information required to be set forth with
respect to the Securities;
(xiii) to the best of their knowledge, each
of the Company's subsidiaries has municipal consents
or franchises free from unduly burdensome
restrictions which, together with its corporate or
charter powers, are adequate to enable it to carry on
its operations in the territory served by such
subsidiary; and
(xiv) neither the issuance and sale of the
Securities by the Company nor the execution, delivery
and performance of this Agreement will conflict with
or result in a breach of, or constitute a default
under, any of the terms, conditions or provisions of
any agreement or instrument known to such counsel to
which the Company or any of its subsidiaries is a
party or by which the Company or any of its
subsidiaries or any of their properties is bound.
(2) The favorable opinion of ▇▇▇▇▇ ▇▇▇▇, counsel for
the Underwriters, dated the Closing Date, with respect to such
matters as requested by the Underwriters.
(3) A certificate signed by any two of the Chairman
and Chief Executive Officer, President, a Senior Vice
President, Treasurer or the Controller of the Company, dated
the Closing Date, to the effect that (i) they have carefully
read the Registration Statement; (ii) as of the date of the
Terms Agreement, the Registration Statement and the Prospectus
did not contain an 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; (iii) since the effective date of the Registration
Statement, no event has occurred which should have been set
forth in an amendment or supplement to the Prospectus but
which has not been set forth; and (iv) at the Closing Date,
the representations and warranties set forth in Section 1 of
the Agreement are true and correct.
(c) The Underwriters shall have received from ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
LLP, a letter, dated as of the Closing Date in form and substance
satisfactory to the Underwriters, to the effect that:
(i) they are independent certified public accountants
with respect to the Company and its subsidiaries within the
meaning of the Securities Act and the Regulations and are in
compliance with the requirements for the qualification of
accountants under Rule 2.01 of Regulation S-X of the
Regulations;
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(ii) in their opinion, the audited financial
statements and supplemental schedules set forth in the most
recent annual report on Form 10-K filed by the Company
pursuant to Section 13 of the 1934 Act and covered by their
opinion in such annual report on Form 10-K included in the
Registration Statement and the Prospectus comply as to form in
all material respects with the applicable accounting
requirements of the 1934 Act and the 1934 Act Regulations; and
(iii) they confirm, as of the date of such letter
(or, with respect to matters involving changes or developments
since the respective dates as of which specified financial
information is given or incorporated in the Prospectus, as of
a date not more than five days prior to the date of such
letter), their conclusions and findings with respect to the
financial information and other matters covered by its letter
delivered to you and dated as of the date of this Agreement.
(d) At the Closing Date, counsel for the Underwriters shall
have been furnished with such other documents, certificates and
opinions as they may reasonably require for the purpose of enabling
them to pass upon the issuance and sale of the Securities as herein
contemplated and related proceedings, or in order to evidence the
accuracy or completeness of any of the representations or warranties,
or the fulfillment of any of the conditions, herein contained; and all
proceedings taken by the Company in connection with the issuance and
sale of the Securities as herein contemplated shall be satisfactory in
form and substance to the Underwriters and counsel for the
Underwriters.
If any of the conditions specified in this Section shall not have been
fulfilled when as required by this Agreement to be fulfilled, this Agreement and
all obligations of the Underwriters hereunder may be cancelled by the
Underwriters by notifying the Company of such cancellation in writing or by
telegram at any time at or prior to the Closing Date, and any such cancellation
shall be without liability of any party to this Agreement to any other party to
this Agreement except as otherwise provided in this Agreement.
Section 6. Conditions of Company's Obligation. The obligation of the
Company to issue and sell the Securities at the Closing Date is subject to the
condition that on the Closing Date no stop order suspending the effectiveness of
the Registration Statement shall have been issued or proceedings therefor
initiated or threatened.
Section 7. Indemnification.
(a) The Company agrees to indemnify and hold harmless each
Underwriter and each person, if any, who controls an Underwriter within
the meaning of Section 15 of the Securities Act, as follows:
(i) against any and all loss, liability, claim,
damage and expense whatsoever arising out of any untrue
statement or alleged untrue statement of a material fact
included in the Registration Statement (or any amendment
thereto), or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to
make the statements therein not misleading or arising out of
any untrue statement or alleged untrue statement of a material
A-12
fact included in any preliminary prospectus or the Prospectus
(or any amendment or supplement thereto) or the omission or
alleged omission therefrom of a material fact necessary in
order to make the statements therein, in light of the
circumstances under which they were made, not misleading,
unless such untrue statement or omission or such alleged
untrue statement or omission was made in reliance upon and in
conformity with written information furnished to the Company
by an Underwriter expressly for use in the Registration
Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement
thereto);
(ii) against any and all loss, liability, claim,
damage and expense whatsoever to the extent of the aggregate
amount paid in settlement of any litigation or investigation
or proceeding by any governmental agency or body, commenced or
threatened, or of any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue
statement or omission, if such settlement is effected with the
written consent of the Company; and
(iii) against any and all expense whatsoever
(including the fees and disbursements of counsel chosen by the
Underwriters) reasonably incurred in investigating, preparing
or defending against any litigation or investigation or
proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid
under (i) or (ii) above.
(b) Each Underwriter severally agrees that it will indemnify
and hold harmless the Company, its directors, and each of its officers
who signed the Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Securities
Act to the same extent as the indemnity contained in subsection (a) of
this Section, but only with respect to statements or omissions made in
the Registration Statement (or any amendment thereto) or any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto) in reliance upon and in conformity with written
information furnished to the Company by such Underwriter expressly for
use in the Registration Statement (or any amendment thereto) or such
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of
which indemnity may be sought hereunder, but failure to so notify an
indemnifying party shall not relieve it from any liability which it may
have otherwise than on account of this indemnity agreement. An
indemnifying party may participate at its own expense in the defense of
such action. In no event shall the indemnifying parties be liable for
the fees and expenses of more than one counsel for all indemnified
parties 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.
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Section 8. Contribution. In order to provide for just and equitable
contribution in circumstances in which the indemnity agreement provided for in
Section 7 is for any reason held to be unenforceable by the indemnified parties
although it is applicable in accordance with its terms, the Company and the
Underwriters shall contribute to the aggregate losses, liabilities, claims,
damages and expenses of the nature contemplated by said indemnity agreement
incurred by the Company and one or more Underwriters in respect of such offering
in such proportions that the Underwriters shall be responsible for that portion
of the aggregate losses, liabilities, claims, damages and expenses represented
by the percentage that the underwriting discount appearing on the cover page of
the Prospectus Supplement relating to the Securities bears to the public
offering price appearing thereon and the Company shall be responsible for the
balance; provided, however, that no such person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation. For purposes of this Section, each person, if any,
who controls an Underwriter within the meaning of Section 15 of the Securities
Act shall have the same rights to contribution as such Underwriter and each
director of the Company, each officer of the Company who signed the Registration
Statement, and each person, if any, who controls the Company within the meaning
of Section 15 of the Securities Act shall have the same rights to contribution
as the Company.
Section 9. Representations, Warranties and Agreements To Survive
Delivery. All representations, warranties and agreements contained in this
Agreement or contained in certificates of officers of the Company submitted
pursuant hereto shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of an Underwriter or any controlling
person of an Underwriter, or by or on behalf of the Company, and shall survive
delivery of any of the Securities to the Underwriters.
Section 10. Termination of Agreement.
(a) The Representatives, by notice to the Company, or the
Company, by notice to the Representatives, may terminate this Agreement
without cause at any time prior to the time the Securities are released
by the Underwriters for sale.
(b) The Underwriters shall also have the right to terminate
this Agreement by notice to the Company at any time at or prior to the
Closing Date (i) if there shall have been, since the respective dates
as of which information is given in the Registration Statement and
Prospectus, any material adverse change in the consolidated condition
of the Company, financial or otherwise, except as referred to in the
Registration Statement and Prospectus, (ii) if there shall have
A-14
occurred any outbreak of hostilities or other national or international
calamity or crisis the effect of which on the financial markets of the
United States shall be such as, in the Representatives' judgment, makes
it impracticable for the Underwriters to sell the Securities, (iii) if
trading in the Common Stock of the Company on the New York Stock
Exchange shall have been suspended or if trading generally on the New
York Stock Exchange shall have been suspended, or minimum or maximum
prices for trading shall have been fixed, or maximum ranges for prices
of securities shall have been required on the New York Stock Exchange,
by such exchange or by order of the Commission or any other
governmental authority having jurisdiction or (iv) if a banking
moratorium shall have been declared by either federal or New York
authorities.
(c) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other
party except as otherwise provided in this Agreement.
Section 11. Default. If any Underwriter shall fail at the Closing Date
to purchase the Securities which it is obligated to purchase hereunder (the
"Defaulted Securities"), the Representatives (or the Representative not in
default if the default is by a Representative) shall have the right, but not the
obligation, within 24 hours thereafter, to make arrangements for one or more of
the Underwriters not in default to purchase all, but not less than all, of the
Defaulted Securities upon the terms herein set forth; if, however, the
Representatives (or the Representatives not in default if the default is by a
Representative) shall not have completed such arrangements within such 24-hour
period, then this Agreement shall terminate without liability on the part of the
Company or any Underwriter not in default, except as otherwise provided in
Section 4.
Nothing in this Section and no action taken pursuant to this Section
shall relieve a defaulting Underwriter from liability in respect of any default
of such Underwriter under this Agreement.
In the event of a default by an Underwriter as set forth in this
Section, either the Representatives or the Company shall have the right to
postpone the Closing Date for a period of not exceeding five business days in
order that any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements may be effected.
Section 12. Notices. Except as otherwise specifically provided herein,
all communications hereunder shall be in writing or by telegram and, if to the
Underwriters, shall be mailed or delivered to the Representatives c/o Stephens
Inc., ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇; if to the Company, shall be mailed or delivered to it at ▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇.
Section 13. Parties. This Agreement shall inure to the benefit of and
be binding upon the Company and any Underwriter who becomes a party hereto and
their respective successors. Nothing expressed or mentioned in this Agreement is
intended or shall be construed to give any person, firm or corporation, other
than the parties hereto and their respective successors and the controlling
persons and the directors and officers referred to in Sections 8 and 9, any
legal or equitable right, remedy or claim under or in respect of this Agreement
or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
parties hereto and their respective successors and said controlling persons,
directors and officers and for the benefit of no other person, firm or
corporation. No purchaser of Securities from an Underwriter shall be deemed to
be a successor by reason merely of such purchase.
A-15
Section 14. Governing Law. This Agreement shall be governed
by the internal laws of the State of Arkansas.
A-16
ALLTEL CORPORATION
(a Delaware corporation)
DEBT SECURITIES
TERMS AGREEMENT
Dated: ___________________, 1998
ALLTEL Corporation
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
We, the underwriters named below (the "Underwriters"), understand that
ALLTEL Corporation, a Delaware corporation (the "Company"), proposes to issue
and sell $______________________ aggregate principal amount of its unsecured
debt securities due _______________________, 20____ (the "Securities"). Subject
to the terms and conditions set forth herein or incorporated by reference
herein, and based upon the representations and warranties incorporated by
reference herein, the Underwriters offer to purchase, severally and not jointly,
the respective principal amounts of Securities set forth below opposite their
respective names at the purchase price set forth below.
Underwriter Principal Amount of Securities
▇▇▇▇▇▇▇▇ Inc. $
------------
NationsBanc ▇▇▇▇▇▇▇▇▇▇
------------
Securities LLC
------------
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
------------
Total ....................... $
The Securities shall have the terms described in the Preliminary
Prospectus Supplement with respect to the Securities dated __________________,
1998 and the following additional terms:
Interest rate: _____%
Initial public offering price: _____% ($______________)
Purchase Price: _____% ($______________)
All the provisions contained in the document attached as Annex A hereto
entitled "ALLTEL Corporation - Underwriting Agreement Basic Provisions" are
hereby incorporated by reference in their entirety herein and shall be deemed to
be a part of this Terms Agreement to the same extent as if such provisions had
been set forth in full herein. Terms defined in such document are used herein as
therein defined.
Please accept this offer no later than 3:00 p.m. (Little Rock, Arkansas
time) by signing a copy of this Terms Agreement in the space set forth below and
returning the signed copy to us.
Very truly yours,
▇▇▇▇▇▇▇▇ INC.
NATIONSBANC ▇▇▇▇▇▇▇▇▇▇
SECURITIES LLC
▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY
By ▇▇▇▇▇▇▇▇ Inc.
By:
Name:
Title:
Accepted:
ALLTEL Corporation
By:
Name:
Title:
