Exhibit 1-b
SBC COMMUNICATIONS INC.
PREFERRED STOCK
FORM OF UNDERWRITING AGREEMENT
------------------------------
(date)
To the Representative(s)
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
SBC Communications Inc., a Delaware corporation (the "Company"), may
issue and sell from time to time shares of its preferred stock registered under
the registration statement referred to in Paragraph 1(a) hereof (the
"Securities", and individually a "Security"). The Securities will be issued in
one or more series, which series may vary as to dividend rates, redemption
provisions, selling prices, as to whether depositary shares will be offered and
other terms, with all such terms for any particular series of the Securities
being determined at the time of sale. The Company proposes to sell to the
underwriters named in Schedule II hereto (the "Underwriters") for whom you are
acting as representative(s) (the "Representative"), a series of Securities with
the terms and in the aggregate principal amount specified in Schedule I hereto
(the "Underwritten Securities" and, individually, an "Underwritten Security").
1. Representations and Warranties of the Company. 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 (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has
become effective. As used in this Agreement, (i) "Registration Statement"
means that registration statement, as amended or supplemented to the date
hereof (including all documents incorporated therein by reference); (ii)
"Preliminary Prospectus" means each prospectus (including all documents
incorporated therein by reference) included in that Registration Statement,
or amendments thereto or supplements thereof, before it became effective
under the Securities Act, including any prospectus filed with the
Commission pursuant to Rule 424(a) of the Rules and
Regulations; (iii) "Basic Prospectus" means the prospectus (including all
documents incorporated therein by reference) included in the Registration
Statement; and (iv) "Prospectus" means the Basic Prospectus, together with
any prospectus amendment or supplement (including in each case all
documents incorporated therein by reference) specifically relating to the
Underwritten Securities, as filed with, or mailed for filing to, the
Commission pursuant to paragraph (b) or (c) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of the Prospectus.
(b) The Registration Statement and each 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 3(c)
hereof, all statements which are required by the Securities Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations of the Commission under such Acts; and the
Registration Statement and the Prospectus do not, 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 not at any time during
the period specified in Paragraph 3(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;
provided 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.
(c) 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 compliance by the Company
with the provisions of the Underwritten Securities 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 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.
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(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, 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 Registration
Statement and the Prospectus.
(e) 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 Prospectus, 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.
(f) The Underwritten Securities have been duly authorized and, when
the Underwritten Securities have been delivered and paid for in accordance
with this Agreement on the Closing Date (as defined below), such
Underwritten Securities will have been validly issued, fully paid and
nonassessable and will constitute legally binding obligations of the
Company; and the Underwritten Securities will conform to the description
thereof contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Underwritten Securities.
( ) [If the Underwritten Securities are convertible into Common Stock:
When the Underwritten Securities are delivered and paid for pursuant to
this Agreement on the Closing Date (as defined below), such Underwritten
Securities will be convertible into Common Stock of the Company in
accordance with their terms; the shares of Common Stock initially issuable
upon conversion of such Underwritten Securities have been duly authorized
and reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable; the
outstanding shares of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Common Stock.]
( ) [If the Underwritten Securities are convertible into debt
securities of the Company: When the Underwritten Securities are delivered
and paid for pursuant to this Agreement on the Closing Date (as defined
below), such Underwritten Securities will be convertible into debt
securities of the Company in accordance with their terms; the Indenture
under which the debt securities will be issued will have been duly
authorized and duly qualified under the Trust Indenture Act; the debt
securities
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initially issuable upon conversion of such Underwritten Securities have
been duly authorized; and, when the Underwritten Securities have been
delivered upon such conversion, the Indenture will have been duly executed
and delivered and will conform to the description thereof in the
Prospectus; such debt securities will have been duly executed
authenticated, issued and delivered and will conform to the description
thereof contained in the Prospectus and the Indenture, and such debt
securities, when issued upon such conversion, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.]
[Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the offering of the Underwritten
Securities.]
[There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.]
(g) The Underwritten Securities have been approved for listing on the
stock exchange indicated in Schedule I hereto, subject to notice of
issuance.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) Except as described in the Prospectus, 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 Registration Statement.
(j) The financial statements filed as part of the Registration
Statement or included in any Preliminary Prospectus or the Prospectus
present, or (in the case of any amendment or supplement to any such
document, or any material incorporated by
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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 3(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 3(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).
(k) The documents incorporated by reference into any Preliminary
Prospectus 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 3(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 3(c) hereof, timely
filed as required thereby.
(l) 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. Purchase and Offering of Underwritten Securities. 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 subject to the other terms set forth
in this Agreement and Schedule I hereto, the principal amount of the
Underwritten Securities set forth opposite its name in Schedule II hereto.
Schedule I hereto will also specify the time and date of delivery and payment
(such time and date, or such other time not later than seven full business days
thereafter as the Representative and the Company agree as the time for payment
and
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delivery, being herein and in Schedule I hereto referred to as the "Closing
Date"), the place of delivery and payment and any details of the terms of
offering that should be reflected in the prospectus supplement relating to the
offering of the Underwritten Securities, including, but not limited to, dividend
rate, redemption provisions, any sinking fund requirements, and whether any
depositary shares will be offered. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Underwritten Securities sold pursuant to the offering.
It is understood that the Underwriters propose to offer the Securities for sale
as set forth in the Prospectus.
The certificates for the Underwritten Securities delivered to the
Underwriters on the Closing Date will be in definitive form, in such
denominations and registered in such names as the Representative requests.
The Company shall not be obligated to deliver any Underwritten Securities
except upon payment for all Underwritten Securities to be purchased pursuant to
this Agreement as hereinafter provided.
3. Certain Agreements of the Company. 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, including all exhibits 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 and this Agreement), (ii) the Prospectus and (iii) any documents
incorporated by reference in the Prospectus.
(c) During any period when a Prospectus relating to the Underwritten
Securities is 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
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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 the Prospectus and any amendment
or supplement thereto to be filed with the Commission as required pursuant
to Rule 424 under the Securities Act. The Company will promptly advise the
Representative (i) when the 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 the 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
threatening of any proceeding for that purpose 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 the Prospectus or Registration
Statement not furnished to the Representative for prior review pursuant to
exceptions (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 required to be delivered under the Securities Act in
connection with sales by any Underwriter or dealer, any event occurs as a
result of which the Registration Statement, as then amended, or the
Prospectus as then 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 at any time to amend the
Registration Statement or to 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 3(c), 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.
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(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 to the
extent that such documents are not available on the Commission's website.
(g) The Company will endeavor to qualify the Underwritten Securities
for sale and arrange for the determination of their eligibility for
investment 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.
(h) The Company will pay the costs incident to the performance of its
obligations under this Agreement and will reimburse the Underwriters (if
and to the extent incurred by them) for 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
Preliminary Prospectus, the Prospectus and any documents incorporated by
reference in any of the foregoing documents; the costs of producing this
Agreement; fees paid to rating agencies in connection with the rating of
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
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 7 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.
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(j) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Securities Act relating to any series of
preferred stock issued or guaranteed by the Company, or publicly disclose
the intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Representative for a period
beginning at the time of execution of this Agreement and ending the number
of days after the Closing Date specified under "Blackout" in Schedule I
hereto.
[If the Underwritten Securities are convertible into Common Stock: The
Company will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, or file with the Commission a registration
statement under the Securities Act relating to, any additional shares of
its Common Stock or securities convertible into or exchangeable or
exercisable for any shares of its Common Stock, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Representative for a period
beginning at the time of execution of this Agreement and ending the number
of days after the Closing Date specified under "Blackout" in Schedule I
hereto, except [issuances of Common Stock pursuant to the conversion or
exchange of convertible or exchangeable securities or the exercise of
warrants or options, in each case outstanding on the date of this Agreement
or the exercise of any other employee stock options outstanding on the date
of this Agreement or] issuances of Common Stock pursuant to the Company's
dividend reinvestment plan.]
4. Conditions of the Obligations of the Underwriters. The respective
obligations of the several Underwriters under this Agreement with respect to the
Underwritten Securities are subject to the accuracy, on the date of this
Agreement and on the Closing 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 Closing Date, no stop order suspending the
effectiveness of the Registration Statement nor any order directed to any
document incorporated by reference in the 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; any request of the Commission
for inclusion of additional information in the Registration Statement or
the 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 or the Prospectus (or
any document incorporated by reference therein) that shall have been
disapproved by the Representative.
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(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Closing Date that the Registration Statement or the
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 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 and thereby shall be satisfactory in all respects to Xxxxxxxx &
Xxxxxxxx, 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 Closing 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 Prospectus, 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) 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
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Prospectus, 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
Prospectus describing any legal proceedings or material
contracts or agreements
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relating to the Company or any of its subsidiaries fairly
summarize such matters; the Underwritten Securities conform
to the descriptions thereof contained under the following
(or comparable) captions of the Prospectus: "Description of
Securities" and "Plan of Distribution";
(iii) the Underwritten Securities have been duly authorized and,
when delivered and paid for in accordance with this
Agreement on the Closing Date, such Underwritten Securities
will have been validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the
Prospectus; and the shareholders of the Company have no
preemptive rights with respect to the Underwritten
Securities;
( ) [If the Underwritten Securities are convertible into
Common Stock: the Underwritten Securities are convertible
into Common Stock of the Company in accordance with its
terms, and the shares of Common Stock initially issuable
upon conversion of the Underwritten Securities have been
duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be
validly issued, fully paid and nonassessable; the
outstanding shares of Common Stock have been duly authorized
and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Common Stock;]
( ) [If the Underwritten Securities are convertible into debt
securities of the Company: The Underwritten Securities are
convertible into debt securities of the Company in
accordance with their terms; the Indenture under which the
debt securities will be issued has been duly authorized and
duly qualified under the Trust Indenture Act; the debt
securities initially issuable upon conversion of such
Underwritten Securities have been duly authorized; the
Indenture has been duly executed and delivered and conforms
to the description thereof in the Prospectus; and the debt
securities conform to the description thereof contained in
the Prospectus and, when duly executed, authenticated,
issued and delivered upon such conversion, will constitute
valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general
equity principles;]
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(iv) 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 respective rules and
regulations thereunder; and such counsel has no reason to
believe that the Registration Statement, or any amendment
thereof, at the time it became effective or at the date of
this Agreement or at the Closing 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 or that the
Prospectus, at the date of this Agreement or at the Closing
Date, included any untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) 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, except
such as have been obtained under the Securities 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
(vii) neither the execution and delivery of this Agreement, 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
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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 (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 of 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 (vi) 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 Xxxxxxxx & Xxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the date
hereof, with respect to the issuance and sale of the Underwritten
Securities, the Registration Statement, 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 Closing Date with the same effect as if made
on the Closing 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 subsections (a)
and (b) of this Paragraph 4 have been fulfilled;
(ii) as of the date of the Prospectus, the Registration Statement
and the Prospectus did not include any untrue statement of a
material fact and
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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 Prospectus,
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 Prospectus.
(g) The Company shall have furnished to the Representative (i) a
letter of the Company's independent auditors, addressed to the Board of
Directors of the Company and the Underwriters and dated the later of the
effective date of the Registration Statement or the date of the filing of
the Company's latest Annual Report on Form 10-K, of the type described in
the American Institute of Certified Public Accountants' Statement on
Auditing Standards No. 49 and covering such financial statement items as
counsel for the Underwriters may reasonably have requested and (ii) a
letter of the Company's independent auditors, addressed to the Underwriters
and dated the Closing Date, stating, 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 in
the Prospectus, as of a date not more than five days prior to the date of
such letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by its letter referred to
in subclause (i) above and confirming in all material respects the
conclusions and findings set forth in such prior letter.
(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, except such as
have been, or will have been prior to the Closing Date, obtained under the
Securities 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.
5. Indemnification and Contribution. (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
14
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 any Preliminary Prospectus, the Registration Statement or the
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, 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 any Preliminary Prospectus, the Registration Statement
or the 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, any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the 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.
15
(c) Promptly after receipt by an indemnified party under this
Paragraph 5 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 5, 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 5(a) or 5(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 5 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 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 5 shall for
any reason be unavailable to an indemnified party under Paragraph 5(a) or
5(b) hereof in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to
16
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 5(d) shall be deemed to
include, for purposes of this Paragraph 5(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 5(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 Securities 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 5(d)
are several in proportion to their respective underwriting obligations and
not joint.
(e) The agreements contained in this Paragraph 5 and the
representations, warranties and agreements of the Company in Paragraph 1
and Paragraph 3 hereof
17
shall survive the delivery of the Underwritten Securities and shall remain
in full force and effect, regardless of any termination or cancellation of
this Agreement or any investigation made by or on behalf of any indemnified
party.
6. Termination of Obligations. 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 Underwritten Securities, if, during the period beginning
on the date hereof to and including the Closing Date, (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 Prospectus, or (d) the Company shall have received
notice that any rating of any of the debt securities of the Company [or its
preferred stock] 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 debt securities of the Company [or any of its preferred stock] 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.
7. Reimbursement of Expenses. If the Company shall fail to tender the
Underwritten Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall decline to purchase
the Underwritten Securities for any reason permitted under this Agreement (other
than pursuant to Paragraph 8 or Paragraph 6(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 Underwritten
Securities and the solicitation of any purchases of the Underwritten Securities,
and upon demand the Company shall pay the full amount thereof to the
Representative. If this Agreement is terminated pursuant to Paragraph 8 hereof
by reason of the default of one or more Underwriters or pursuant to Paragraph
6(a)-(d) hereof, the Company shall not be obligated to reimburse any Underwriter
on account of those expenses.
18
8. Default of Underwriters. If any Underwriter defaults in the performance
of its obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the 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 Underwritten Securities if the aggregate principal
amount of 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 Representatives
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 Underwritten
Securities. If the remaining Underwriters or other underwriters satisfactory to
the Representative do not elect to purchase the 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 3(h) hereof.
Nothing contained in this Paragraph 8 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
Underwritten Securities of a defaulting or withdrawing Underwriter, either the
Representative or the Company may postpone the Closing 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
Prospectus or in any other document or arrangement.
9. Notices. 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 II 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
SBC Communications Inc., 000 X.
00
Xxxxxxx Street, 0xx Xxxxx, Xxx Xxxxxxx, Xxxxx 00000-0000, Telecopy Number: (210)
351-3849, Attention of the Senior Vice President, Treasurer, and Chief Financial
Officer with a copy to the Senior Executive Vice President and General Counsel,
SBC Communications Inc., 000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxx
00000-0000, Telecopy Number: (000) 000-0000.
10. Successors and Assigns. 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 5 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 10, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
11. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the financing described in this
Agreement, and any action under this Agreement taken by the Representative will
be binding upon all the Underwriters.
12. Business Day. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange, Inc. is open for trading.
13. Counterparts. This Agreement may be executed 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.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
20
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,
SBC COMMUNICATIONS INC.
By................................
[Insert title]
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
[NAME OF REPRESENTATIVE]
By............................
[Insert title]
[For itself and as Representative of
the several Underwriters named in
Schedule II to the foregoing
Agreement.]
21
SCHEDULE I
UNDERWRITING AGREEMENT dated ______________, 200_.
REGISTRATION STATEMENT NO. 333-______
REPRESENTATIVE[S] AND ADDRESS(ES):
UNDERWRITTEN SECURITIES:
TITLE:
NUMBER OF SHARES:
DIVIDEND RATE:
OPTIONAL REDEMPTION:
SINKING FUND:
LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
DELAYED DELIVERY CONTRACTS: [None.]
PURCHASE PRICE: $ per share plus accrued dividends, if any, from , 200 ].
EXPECTED REOFFERING PRICE: $ per share, subject to change by the
[Representative[s]] [Underwriters].
CLOSING: A.M. on , 200 , at , in New York Clearing House (next day) funds.
[UNDERWRITER[S'][`S] COMPENSATION: $ payable to the [Representative[s] for
the proportionate accounts of the] Underwriter[s] on the Closing Date.]
BLACKOUT: Until days after the Closing Date.
22
The respective numbers of shares of the Underwritten Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The Underwritten Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the Closing Date.
23
SCHEDULE A
UNDERWRITER NUMBER OF
SHARES
..........................................................
------------
Total
.......................................................... ============
24
SCHEDULE II
NAME OF UNDERWRITER PRINCIPAL
AMOUNT
----------
........................................................... $
-------------
Total .......................................... $
=============
25
