AT&T INC. 4.85% GLOBAL NOTES DUE 2014 5.80% GLOBAL NOTES DUE 2019 6.55% GLOBAL NOTES DUE 2039 UNDERWRITING AGREEMENT
Exhibit 1.1
AT&T INC.
4.85% GLOBAL NOTES DUE 2014
5.80% GLOBAL NOTES DUE 2019
6.55% GLOBAL NOTES DUE 2039
5.80% GLOBAL NOTES DUE 2019
6.55% GLOBAL NOTES DUE 2039
January 29, 2009
To the Representative(s)
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Ladies and Gentlemen:
AT&T Inc., a Delaware corporation formerly known as SBC Communications Inc. (the “Company”),
may issue and sell from time to time series of its debt securities registered under the
registration statement referred to in Paragraph 1(a) hereof (“Securities” and, individually,
“Security”). The Securities will be issued under an Indenture, dated as of November 1, 1994 (the
“Indenture”), from the Company to The Bank of New York Mellon, as Trustee, in one or more series,
which series may vary as to interest rates, maturities, redemption provisions and selling prices,
with all such terms for any particular series being determined at the time of sale. The Company
proposes to sell to the underwriters named in Schedule II hereto (“Underwriters”), for whom you are
acting as representative(s) (“Representative”), a series of Securities of the designation, with the
terms and in the aggregate principal amount specified in Schedule I hereto (“Underwritten
Securities” and, individually, “Underwritten Security”).
1. The Company represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-3 with respect to the Securities has been
prepared by the Company in conformity with the requirements of the Securities Act of 1933,
as amended (“Securities Act”), and the rules and regulations (“Rules and Regulations”) of
the Securities and Exchange Commission (“Commission”) thereunder and has become effective.
As used in this Agreement:
(i) “Registration Statement” as of any time means the Registration Statement in
the form then filed with the Commission, including any amendment thereto, any
document incorporated by reference therein and any information in a prospectus or
prospectus supplement deemed or retroactively deemed to be a part thereof pursuant
to Rule 430B that has not been superseded or modified. “Registration Statement”
without reference to a time means the Registration
Statement as of the time of the first contract of sale for the Underwritten
Securities, which time shall be considered the “effective date” of the Registration
Statement relating to the Underwritten Securities. For purposes of this definition,
information contained in a form of prospectus or prospectus supplement that is
deemed retroactively to be a part of the Registration Statement pursuant to
Rule 430B shall be considered to be included in the Registration Statement as of the
time specified in Rule 430B.
(ii) “Statutory Prospectus” as of any time means the prospectus relating to the
Underwritten Securities that is included in the Registration Statement immediately
prior to that time, including any document incorporated by reference therein and any
basic prospectus or prospectus supplement deemed to be a part thereof pursuant to
Rule 430B that has not been superseded or modified. For purposes of this
definition, information contained in a form of prospectus (including a prospectus
supplement) that is deemed retroactively to be a part of the Registration Statement
pursuant to Rule 430B shall be considered to be included in the Statutory Prospectus
only as of the actual time that form of prospectus (including a prospectus
supplement) is filed with the Commission pursuant to Rule 424(b).
(iii) “Prospectus” means the Statutory Prospectus that discloses the public
offering price and other final terms of the Underwritten Securities and otherwise
satisfies Section 10(a) of the Securities Act of 1933.
(iv) “Issuer Free Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433, relating to the Underwritten Securities in the
form filed or required to be filed with the Commission or, if not required to be
filed, in the form retained in the Company’s records pursuant to Rule 433(g).
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is intended for general distribution to prospective investors, as
evidenced by its being specified in a schedule to this Agreement. “Limited Use
Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus that is not
a General Use Issuer Free Writing Prospectus.
(v) “Applicable Time” means the time and date identified as such in Schedule I
of this Agreement.
(b) The Registration Statement and the Prospectus contain, and (in the case of any
amendment or supplement to any such document, or any material incorporated by reference in
any such document, filed with the Commission after the date as of which this representation
is being made) will contain at all times during the period specified in Paragraph 8(c)
hereof, all statements which are required by the Securities Act, the Securities Exchange Act
of 1934, as amended (“Exchange Act”), the Trust Indenture Act of 1939, as amended (“Trust
Indenture Act”), and the rules and regulations of the Commission under such Acts; the
Indenture, including any amendments and supplements
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thereto, pursuant to which the Underwritten Securities will be issued will conform with
the requirements of the Trust Indenture Act and the rules and regulations of the Commission
thereunder, and the Registration Statement and the Prospectus do not, and (in the case of
any amendment or supplement to any such document, or any material incorporated by reference
in any such document, filed with the Commission after the date as of which this
representation is being made) will not at any time during the period specified in Paragraph
8(c) hereof, contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary to make the statements therein not
misleading except that the Company makes no representation or warranty as to information
contained in or omitted from the Registration Statement or the Prospectus in reliance upon
and in conformity with information furnished in writing to the Company through the
Representatives by or on behalf of any Underwriter specifically for use therein, or as to
any statements in or omissions from the Statement of Eligibility and Qualification of the
Trustee under the Indenture.
(c)
(i) (A) At the time of initial filing of the Registration Statement, (B) at the
time of the most recent amendment thereto for the purposes of complying with Section
10(a)(3) of the Securities Act (whether such amendment was by post-effective
amendment, incorporated report filed pursuant to Section 13 or 15(d) of the Exchange
Act or form of prospectus), and (C) at the time the Company or any person acting on
its behalf (within the meaning, for this clause only, of Rule 163(c)) made any offer
relating to the Underwritten Securities in reliance on the exemption of Rule 163,
the Company was a “well known seasoned issuer” as defined in Rule 405, including not
having been an “ineligible issuer” as defined in Rule 405.
(ii) The Registration Statement is an “automatic shelf registration statement,”
as defined in Rule 405, that initially became effective within three years of the
date of this Agreement. If immediately prior to the Renewal Deadline (as
hereinafter defined), any of the Underwritten Securities remain unsold by the
Underwriters, the Company will prior to the Renewal Deadline file, if it has not
already done so and is eligible to do so, a new automatic shelf registration
statement relating to the Underwritten Securities, in a form satisfactory to the
Representative. If the Company is no longer eligible to file an automatic shelf
registration statement, the Company will prior to the Renewal Deadline, if it has
not already done so, file a new shelf registration statement relating to the
Underwritten Securities, in a form satisfactory to the Representative, and will use
its best efforts to cause such registration statement to be declared effective
within 180 days after the Renewal Deadline. The Company will take all other action
necessary or appropriate to permit the public offering and sale of the Underwritten
Securities to continue as contemplated in the expired registration statement
relating to the Underwritten Securities. References herein
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to the Registration Statement shall include such new automatic shelf
registration statement or such new shelf registration statement, as the case may be.
“Renewal Deadline” means the third anniversary of the initial effective time of the
Registration Statement.
(iii) The Company has not received from the Commission any notice pursuant to
Rule 401(g)(2) objecting to use of the automatic shelf registration statement form.
If at any time when Underwritten Securities remain unsold by the Underwriters the
Company receives from the Commission a notice pursuant to Rule 401(g)(2) or
otherwise ceases to be eligible to use the automatic shelf registration statement
form, the Company will (i) promptly notify the Representative, (ii) promptly file a
new registration statement or post-effective amendment on the proper form relating
to the Underwritten Securities, in a form satisfactory to the Representative, (iii)
use its best efforts to cause such registration statement or post-effective
amendment to be declared effective as soon as practicable, and (iv) promptly notify
the Representative of such effectiveness. The Company will take all other action
necessary or appropriate to permit the public offering and sale of the Underwritten
Securities to continue as contemplated in the registration statement that was the
subject of the Rule 401(g)(2) notice or for which the Company has otherwise become
ineligible. References herein to the Registration Statement shall include such new
registration statement or post-effective amendment, as the case may be.
(iv) The Company has paid or shall pay the required Commission filing fees
relating to the Underwritten Securities within the time required by Rule 456(b)(1)
without regard to the proviso therein and otherwise in accordance with Rules 456(b)
and 457(r).
(d) (i) At the earliest time after the filing of the Registration Statement that the
Company or another offering participant made a bona fide offer (within the meaning of Rule
164(h)(2)) of the Underwritten Securities and (ii) at the date of this Agreement, the
Company was not and is not an “ineligible issuer,” as defined in Rule 405.
(e) As of the Applicable Time, neither (i) the General Use Issuer Free Writing
Prospectus(es) issued at or prior to the Applicable Time, the Statutory Prospectus and the
additional information, if any, identified in Schedule 7 to this Agreement, all considered
together (collectively, the “General Disclosure Package”), nor (ii) any individual Limited
Use Issuer Free Writing Prospectus, when considered together with the General Disclosure
Package, included any untrue statement of a material fact or omitted to state any material
fact necessary in order to make the statements therein, in the light of the circumstances
under which they were made, not misleading except that the Company makes no representation
or warranty as to information contained in or omitted from any prospectus included in the
Registration Statement or any Issuer Free Writing Prospectus
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in reliance upon and in conformity with information furnished in writing to the Company
through the Representative by or on behalf of any Underwriter specifically for use therein.
(f) Each Issuer Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the Underwritten Securities or
until any earlier date that the Company notified or notifies the Representative as described
in the next sentence, did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information then contained in the
Registration Statement. If at any time following issuance of an Issuer Free Writing
Prospectus there occurred or occurs an event or development as a result of which such Issuer
Free Writing Prospectus conflicted or would conflict with the information then contained in
the Registration Statement or included or would include an untrue statement of a material
fact or omitted or would omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances prevailing at that subsequent time,
not misleading, (i) the Company has promptly notified or will promptly notify the
Representative and (ii) the Company has promptly amended or will promptly amend or
supplement such Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
(g) The Company is not in violation of its corporate charter or bylaws or in default
under any agreement, indenture or instrument, the effect of which violation or default would
be material to the Company; the execution, delivery and performance of this Agreement and
any Delayed Delivery Contracts (as defined in Paragraph 3 hereof) and compliance by the
Company with the provisions of the Underwritten Securities and the Indenture will not
conflict with, result in the creation or imposition of any lien, charge or encumbrance upon
any of the assets of the Company or any of its material subsidiaries pursuant to the terms
of, or constitute a default under, any agreement, indenture or instrument, or result in a
violation of the corporate charter or bylaws of the Company or any order, rule or regulation
of any court or governmental agency having jurisdiction over the Company; and except as
required by the Securities Act, the Trust Indenture Act and applicable state securities
laws, no consent, authorization or order of, or filing or registration with, any court or
governmental agency is required for the execution, delivery and performance of this
Agreement, the Delayed Delivery Contracts, if any, and the Indenture. The Commission has
not issued any order preventing or suspending the use of any part of the Registration
Statement or the Prospectus.
(h) Except as described in or contemplated by the General Disclosure Package, there
shall have not occurred any changes or any development involving a prospective change, or
affecting particularly the business or properties of the Company or its subsidiaries which
materially impairs the investment quality of the Underwritten Securities since the dates as
of which information is given in the General Disclosure Package.
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(i) On the Delivery Date (as defined in Paragraph 7 hereof) (i) the Indenture will have
been duly authorized, executed and delivered by the Company and will constitute the legally
binding obligation of the Company, enforceable in accordance with its terms, (ii) the
Underwritten Securities will have been duly authorized and, upon payment therefor as
provided in this Agreement, will constitute legally binding obligations of the Company
entitled to the benefits of the Indenture, and (iii) the Underwritten Securities and the
Indenture will conform to the descriptions thereof contained in the Prospectus.
(j) Each of the Company and its subsidiaries has been duly incorporated, is validly
existing as a corporation in good standing under the laws of its jurisdiction of
incorporation, with full corporate power and authority to own its properties and conduct its
business as described in the General Disclosure Package, and is duly qualified to do
business as a foreign corporation and is in good standing under the laws of each
jurisdiction which requires such qualification wherein it owns or leases properties or
conducts business, except where the failure to so qualify would not have a material adverse
effect on the Company and its subsidiaries taken as a whole.
(k) Except as described in the General Disclosure Package, there is no material
litigation or governmental proceeding pending or, to the knowledge of the Company,
threatened against the Company or any of its subsidiaries which is reasonably expected to
result in any material adverse change in the financial condition, results of operations,
business or prospects of the Company and its subsidiaries taken as a whole or which is
required to be disclosed in the General Disclosure Package.
(l) The financial statements filed as part of the Registration Statement and the
General Disclosure Package present, or (in the case of any amendment or supplement to any
such document, or any material incorporated by reference in any such document, filed with
the Commission after the date as of which this representation is being made) will present at
all times during the period specified in Paragraph 8(c) hereof, fairly, the consolidated
financial condition and results of operations of the Company and its subsidiaries, at the
dates and for the periods indicated, and have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which this representation is being
made) will be at all times during the period specified in Paragraph 8(c) hereof, prepared in
conformity with generally accepted accounting principles applied on a consistent basis
throughout the periods involved (except as described in the notes thereto).
(m) The documents incorporated by reference into any Statutory Prospectus, the General
Disclosure Package or the Prospectus have been, and (in the case of any amendment or
supplement to any such document, or any material incorporated by reference in any such
document, filed with the Commission after the date as of which this representation is being
made) will be, at all times during the period specified in Paragraph 8(c) hereof, prepared
by the Company in conformity with the applicable
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requirements of the Securities Act and the Rules and Regulations and the Exchange Act
and the rules and regulations of the Commission thereunder and such documents have been, or
(in the case of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission after the date as
of which this representation is being made) will be at all times during the period specified
in Paragraph 8(c) hereof, timely filed as required thereby; and no such documents were filed
with the Commission since the Commission’s close of business on the business day immediately
prior to the date of this Agreement and prior to the execution of this Agreement.
(n) There are no contracts or other documents which are required to be filed as
exhibits to the Registration Statement by the Securities Act or by the Rules and
Regulations, or which were required to be filed as exhibits to any document incorporated by
reference in the Prospectus by the Exchange Act or the rules and regulations of the
Commission thereunder, which have not been filed as exhibits to the Registration Statement
or to such document or incorporated therein by reference as permitted by the Rules and
Regulations or the rules and regulations of the Commission under the Exchange Act as
required.
2. Subject to the terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter agrees, severally and not jointly, to purchase from the Company, at the purchase
price and on the other terms set forth in Schedule I hereto, the principal amount of the
Underwritten Securities set forth opposite its name in Schedule II hereto.
3. Any offer to purchase Underwritten Securities by institutional investors solicited by the
Underwriters for delayed delivery shall be made pursuant to contracts substantially in the form of
Exhibit A attached hereto, with such changes therein as the Company and the Representative may
approve (“Delayed Delivery Contracts”). The Company shall have the right, in its sole discretion,
to approve or disapprove each such institutional investor. Underwritten Securities which are
subject to Delayed Delivery Contracts are herein sometimes called “Delayed Delivery Underwritten
Securities” and Underwritten Securities which are not subject to Delayed Delivery Contracts are
herein sometimes called “Immediate Delivery Underwritten Securities”.
Contemporaneously with the purchase on the Delivery Date by the Underwriters of the Immediate
Delivery Underwritten Securities pursuant to this Agreement, the Company will pay to the
Representative, for the account of the Underwriters, the compensation specified in Schedule I
hereto for arranging the sale of Delayed Delivery Underwritten Securities. The Underwriters shall
have no responsibility with respect to the validity or performance of any Delayed Delivery
Contracts.
For the purpose of determining the principal amount of Immediate Delivery Underwritten
Securities to be purchased by each Underwriter, there shall be deducted from the principal amount
of Underwritten Securities to be purchased by such Underwriter as set forth in
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Schedule II hereto that portion of the aggregate principal amount of Delayed Delivery
Underwritten Securities that the principal amount of Underwritten Securities to be purchased by
such Underwriter as set forth in Schedule II hereto bears to the aggregate principal amount of
Underwritten Securities set forth therein to be purchased by all of the Underwriters (in each case
as adjusted by the Representative to avoid fractions of the minimum principal amount in which the
Underwritten Securities may be issued), except to the extent that the Representative determines, in
its discretion, that such deduction shall be otherwise than in such proportion and so advises the
Company.
4. [Reserved]
5. The Company shall not be obligated to deliver any Underwritten Securities except upon
payment for all Immediate Delivery Underwritten Securities to be purchased pursuant to this
Agreement as hereinafter provided.
6. If any Underwriter defaults in the performance of its obligations under this Agreement, the
remaining non-defaulting Underwriters shall be obligated to purchase the Immediate Delivery
Underwritten Securities which the defaulting Underwriter agreed but failed to purchase in the
respective proportions which the principal amount of Underwritten Securities set forth in Schedule
II hereto to be purchased by each remaining non-defaulting Underwriter set forth therein bears to
the aggregate principal amount of Underwritten Securities set forth therein to be purchased by all
the remaining non-defaulting Underwriters; provided that the remaining non-defaulting Underwriters
shall not be obligated to purchase any Immediate Delivery Underwritten Securities if the aggregate
principal amount of Immediate Delivery Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 9.09% of the total principal amount of
Underwritten Securities, and any remaining non-defaulting Underwriter shall not be obligated to
purchase more than 110% of the principal amount of Underwritten Securities set forth in Schedule II
hereto to be purchased by it. If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representative who so agree, shall
have the right, but shall not be obligated, to purchase, in such proportion as may be agreed upon
among them, all the Immediate Delivery Underwritten Securities. If the remaining Underwriters or
other underwriters satisfactory to the Representative do not elect to purchase the Immediate
Delivery Underwritten Securities which the defaulting Underwriter or Underwriters agreed but failed
to purchase, this Agreement shall terminate without liability on the part of any non-defaulting
Underwriter, or the Company, except that the Company will continue to be liable for the payment of
expenses as set forth in Paragraph 8(h) hereof.
Nothing contained in this Paragraph 6 shall relieve a defaulting Underwriter of any liability
it may have to the Company for damages caused by its default. If other Underwriters are obligated
or agree to purchase the Immediate Delivery Underwritten Securities of a defaulting or withdrawing
Underwriter, either the Representative or the Company may postpone the Delivery Date for up to
seven full business days in order to effect any changes that in the opinion of the Company or the
Representative may be necessary in the Registration Statement, the General Disclosure Package, the
Prospectus or in any other document or arrangement.
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7. Delivery of and payment for the Immediate Delivery Underwritten Securities shall be made at
such address, date and time as may be specified in Schedule I hereto. This date and time are
sometimes referred to as the “Delivery Date.” On the Delivery Date, the Company shall deliver the
Immediate Delivery Underwritten Securities to the Representative for the account of each
Underwriter against payment to or upon the order of the Company of the purchase price by certified
or official bank check or checks or wire transfer payable in Federal (same day) funds. Time shall
be of the essence, and delivery at the time and place specified pursuant to this Agreement is a
further condition of the obligation of each Underwriter hereunder. Upon delivery, the Immediate
Delivery Underwritten Securities shall be in such form or forms and in such denominations as may be
set forth in Schedule I. Immediate Delivery Underwritten Securities in registered form shall be in
such authorized denominations and registered in such names as the Representative shall request in
writing not less than two full business days prior to the Delivery Date. For the purpose of
expediting the checking and packaging of the Immediate Delivery Underwritten Securities, the
Company shall make the Immediate Delivery Underwritten Securities available for inspection by the
Representative in New York, New York not later than 2:00 P.M., local time, on the business day
prior to the Delivery Date.
8. The Company agrees with the several Underwriters that:
(a) The Company will furnish promptly to the Representative and to counsel for the
Underwriters signed copies of the Registration Statement as originally filed and each
amendment and supplement thereto filed prior to the date hereof and relating to or covering
the Underwritten Securities, and a copy of the Prospectus filed with the Commission,
including all documents incorporated therein by reference and all consents and exhibits
filed therewith;
(b) The Company will deliver promptly to the Representative such reasonable number of
the following documents as the Representative may request: (i) conformed copies of the
Registration Statement (excluding exhibits other than the computation of the ratio of
earnings to fixed charges, the Indenture and this Agreement), (ii) the Prospectus, (iii) any
Issuer Free Writing Prospectus and (iv) any documents incorporated by reference in the
Prospectus or any Issuer Free Writing Prospectus;
(c) During any period when a prospectus relating to the Underwritten Securities is (or,
but for the exemption in Rule 172, would be) required by law to be delivered, the Company
will not file any amendment of the Registration Statement nor will the Company file any
amendment or supplement to the Prospectus (except for (i) an amendment or supplement
consisting solely of the filing of a document under the Exchange Act or (ii) a supplement
relating to an offering of securities other than the Underwritten Securities), unless the
Company has furnished the Representative a copy of such proposed amendment or supplement for
its review prior to filing and will not file any such proposed amendment or supplement to
which the Representative reasonably objects. Subject to the foregoing sentence, the Company
will cause each Statutory Prospectus (including the Prospectus) and any amendment or
supplement thereto to be
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filed with the Commission as required pursuant to Rule 424 under the Securities Act not
later than the second business day following the earlier of the date it is first used or the
date of this Agreement. The Company will promptly advise the Representative (i) when each
Statutory Prospectus or any amendment or supplement thereto shall have been filed with the
Commission pursuant to Rule 424 under the Securities Act, (ii) when any amendment of the
Registration Statement shall have become effective, (iii) of any request by the Commission
for any amendment of the Registration Statement or amendment of or supplement to any
Statutory Prospectus or Issuer Free Writing Prospectus or for any additional information,
(iv) of the issuance by the Commission of any stop order suspending the effectiveness of the
Registration Statement or the institution or threatening of any proceeding for that purpose
or under Section 8A of the Securities Act and (v) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Underwritten
Securities for sale in any jurisdiction or the initiation or threatening of any proceeding
for such purpose. The Company will promptly (upon filing thereof) furnish the
Representative a copy of any amendment or supplement to any Statutory Prospectus, Issuer
Free Writing Prospectus or Registration Statement not furnished to the Representative for
prior review pursuant to exception (i) or (ii) of the first sentence of this subsection (c).
The Company will use its best efforts to prevent the issuance of any such stop order and,
if issued, to obtain as soon as possible the withdrawal thereof;
(d) If, at any time when a prospectus relating to the Underwritten Securities is (or,
but for the exemption in Rule 172, would be) required to be delivered under the Securities
Act, any event occurs as a result of which the Registration Statement, as then amended, or
the Prospectus, as then amended or supplemented, would include any untrue statement of a
material fact or omit to state any material fact necessary to make the statements therein,
in the light of the circumstances under which they were made, not misleading, or if it shall
be necessary to amend the Registration Statement or to amend or supplement the Prospectus to
comply with the Securities Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify the Representative of the happening of such event, (ii)
prepare and file with the Commission, subject to the first sentence of paragraph (c) of this
Section 8, an amendment or supplement which will correct such statement or omission or an
amendment or supplement which will effect such compliance and (iii) will supply any such
amended or supplemented Prospectus to the Representative in such quantities as the
Representative may reasonably request;
(e) As soon as practicable, the Company will make generally available to its security
holders and to the Representative an earnings statement or statements of the Company which
will satisfy the provisions of Section 11(a) of the Securities Act and Rule 158 under the
Securities Act;
(f) During a period of five years after the date hereof, the Company will furnish to
the Representative copies of all reports and financial statements furnished by the Company
to each securities exchange on which securities issued by the Company may be listed pursuant
to requirements of or agreements with such exchange or to the
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Commission pursuant to the Exchange Act or any rule or regulation of the Commission
thereunder;
(g) The Company will endeavor to qualify the Underwritten Securities for sale under the
laws of such jurisdictions as the Representative may designate and will maintain such
qualifications in effect so long as required for the distribution of the Underwritten
Securities, provided that in connection therewith the Company shall not be required to
qualify as a foreign corporation or take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so subject;
(h) The Company will pay the costs incident to the authorization, issuance and delivery
of the Underwritten Securities and any taxes payable in that connection; the costs incident
to the preparation, printing and filing under the Securities Act of the Registration
Statement and any amendments, supplements and exhibits thereto; the costs of distributing
the Registration Statement as originally filed and each amendment and post-effective
amendment thereof (including exhibits), any Statutory Prospectus, the Prospectus and any
documents incorporated by reference in any of the foregoing documents; the costs incident to
the preparation, printing and distribution of each Issuer Free Writing Prospectus to
investors or prospective investors; the costs of producing this Agreement, the Delayed
Delivery Contracts, if any, and the Indenture; fees paid to rating agencies in connection
with the rating of the Securities, including the Underwritten Securities; the fees and
expenses of qualifying the Underwritten Securities under the securities laws of the several
jurisdictions as provided in this Paragraph and of preparing and printing a Blue Sky
Memorandum and a memorandum concerning the legality of the Securities, including the
Underwritten Securities, as an investment (including fees of counsel to the Underwriters);
and all other costs and expenses incident to the performance of the Company’s obligations
under this Agreement; provided that, except as provided in this Paragraph and in Paragraph
12 hereof, the Underwriters shall pay their own costs and expenses, including the fees and
expenses of their counsel, any transfer taxes on the Underwritten Securities which they may
sell and the expenses of advertising any offering of the Underwritten Securities made by the
Underwriters;
(i) Until the termination of the offering of the Underwritten Securities, the Company
will timely file all documents, and any amendments to previously filed documents, required
to be filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange
Act;
(j) During the period beginning on the date hereof and continuing to the Delivery Date,
the Company will not offer, sell, contract to sell or otherwise dispose of any debt
securities of the Company or any guarantees or support obligations of debt securities of
others, in any case with maturities longer than one year, other than Underwritten Securities
to the Underwriters;
(k) The Company represents and agrees that, unless it obtains the prior consent of the
Representative, and each Underwriter represents and agrees that, unless it
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obtains the prior consent of the Company and the Representative, it has not made and
will not make any offer relating to the Underwritten Securities that would constitute an
Issuer Free Writing Prospectus, or that would otherwise constitute a “free writing
prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such
free writing prospectus consented to by the Company and the Representative is hereinafter
referred to as a “Permitted Free Writing Prospectus.” The Company represents that it has
treated and agrees that it will treat each Permitted Free Writing Prospectus as an “issuer
free writing prospectus,” as defined in Rule 433, and has complied and will comply with the
requirements of Rules 164 and 433 applicable to any Permitted Free Writing Prospectus,
including timely Commission filing where required, legending and record keeping. The
Company has complied and will comply with Rule 433; and
(l) The Company has prepared a final term sheet, which is attached hereto as Schedule
IV, relating to the Underwritten Securities, containing only information that describes the
final terms of the Underwritten Securities and otherwise in a form consented to by the
Representative, and will file such final term sheet within the period required by Rule
433(d)(5)(ii) following the date such final terms have been established for all classes of
the offering of the Underwritten Securities. Any such final term sheet is an Issuer Free
Writing Prospectus and a Permitted Free Writing Prospectus for purposes of this Agreement.
The Company also consents to the use by any Underwriter of a free writing prospectus only in
the form of one or more term sheets relating to the Underwritten Securities and containing
customary information, it being understood that any such free writing prospectus referred to
above shall not be an Issuer Free Writing Prospectus for purposes of this Agreement.
9. (a) The Company shall indemnify and hold harmless each Underwriter and each person, if any,
who controls any Underwriter within the meaning of the Securities Act from and against any loss,
claim, damage or liability, joint or several, and any action in respect thereof, to which that
Underwriter or controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is based upon, any
untrue statement or alleged untrue statement of a material fact contained in the Registration
Statement at any time, any Statutory Prospectus at any time, the Prospectus or any Issuer Free
Writing Prospectus or any “issuer information” filed or required to be filed pursuant to
Rule 433(d) under the Securities Act, or arises out of, or is based upon, the omission or alleged
omission to state therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and shall reimburse each Underwriter and such controlling person
for any legal and other expenses reasonably incurred by that Underwriter or controlling person in
investigating or defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred (but no more frequently than annually); provided, however,
that the Company shall not be liable in any such case to the extent that any such loss, claim,
damage, liability or action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in the Registration Statement at any time, any
Statutory Prospectus at any time, the Prospectus or any Issuer Free Writing Prospectus in reliance
upon and in conformity with written information furnished to the Company through the Representative
by or on behalf of any Underwriter specifically for use
-12-
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 the Registration
Statement at any time, any Statutory Prospectus at any time, the Prospectus or any Issuer Free
Writing Prospectus, or arises out of, or is based upon, the omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the statements therein
not misleading, but in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in conformity with
information furnished in writing to the Company through the Representative by or on behalf of that
Underwriter specifically for use therein, and shall reimburse the Company for any legal and other
expenses reasonably incurred by the Company or any such director, officer or controlling person in
investigating or defending or preparing to defend against any such loss, claim, damage, liability
or action as such expenses are incurred (but no more frequently than annually). The foregoing
indemnity agreement is in addition to any liability which any Underwriter may otherwise have to the
Company or any of its directors, officers or controlling persons.
(c) Promptly after receipt by an indemnified party under this Paragraph 9 of notice of any
claim or the commencement of any action, the indemnified party shall, if a claim in respect thereof
is to be made against the indemnifying party under this Paragraph 9, notify the indemnifying party
in writing of the claim or the commencement of that action, provided that the failure to notify the
indemnifying party shall not relieve it from any liability which it may have to an indemnified
party otherwise than under Paragraph 9(a) or 9(b). If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party thereof, the indemnifying
party shall be entitled to participate therein, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof with counsel
satisfactory to the indemnified party. After notice from the indemnifying party to the indemnified
party of its election to assume the defense of such claim or action, the indemnifying party shall
not be liable to the indemnified party under this Paragraph 9 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the defense thereof other than
reasonable costs of investigation. If the indemnifying party shall not elect to assume the defense
of such action, such indemnifying party will reimburse such indemnified party for the reasonable
fees and expenses of any counsel retained by them. In the event that the parties to any such
action (including impleaded parties) include both the Company and one or more Underwriters and
either (i) the indemnifying party or parties and indemnified party or parties mutually agree or
(ii) representation of both the indemnifying party or parties and the indemnified party or parties
by the same counsel is inappropriate under applicable standards of professional conduct or in the
opinion of such counsel due to actual or potential differing interests between them, then the
indemnifying party shall not have the right to assume the
-13-
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 9 shall for any reason be
unavailable to an indemnified party under Paragraph 9(a) or 9(b) hereof in respect of any loss,
claim, damage or liability, or any action in respect thereof, referred to therein, then each
indemnifying party shall, in lieu of indemnifying such indemnified party, contribute to the amount
paid or payable by such indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as is appropriate to reflect the relative benefits
received by the Company, on the one hand, and the Underwriters, on the other hand, from the
offering of the Underwritten Securities. If, however, this allocation is not permitted by
applicable law, then each indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as shall be appropriate to reflect the relative benefits received by
the Company, on the one hand, and the Underwriters, on the other hand, from the offering of the
Underwritten Securities and the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, with respect to the statements or omissions which resulted in such
loss, claim, damage or liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Underwritten Securities (before
deducting expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters with respect to such offering. The relative fault shall
be determined by reference to whether the untrue or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative knowledge, access to
information and opportunity to correct or prevent such statement or omission. The amount paid or
payable by an indemnified party as a result of the loss, claim, damage or liability, or action in
respect thereof, referred to above in this Paragraph 9(d) shall be deemed to include, for purposes
of this Paragraph 9(d), any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim. Notwithstanding the
provisions of this Paragraph 9(d), no Underwriter shall be required to contribute any amount in
excess of the amount by which the total price at which the Underwritten Securities underwritten by
it and distributed to the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of
-14-
any untrue or alleged untrue statement or omission or alleged omission. No person guilty of
fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent misrepresentation. The
Underwriters’ obligations to contribute as provided in this Paragraph 9(d) are several in
proportion to their respective underwriting obligations and not joint.
(e) The agreements contained in this Paragraph 9 and the representations, warranties and
agreements of the Company in Paragraph 1 and Paragraph 8 hereof shall survive the delivery of the
Underwritten Securities and shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any indemnified party.
10. The obligations of the Underwriters under this Agreement may be terminated by the
Representative, in its absolute discretion, by notice given to and received by the Company prior to
the delivery of and payment for the Immediate Delivery Underwritten Securities, if, on or after the
Applicable Time, (a) trading in securities generally on the New York Stock Exchange, Inc. is
suspended or materially limited, or (b) a banking moratorium is declared by either Federal or New
York State authorities, or (c) there shall have occurred any outbreak or material escalation of
hostilities or other calamity or crisis or the declaration by the United States of war or a
national emergency the effect of which on the financial markets of the United States is material
and adverse and is such as to make it, in the reasonable judgment of the Representative,
impracticable or inadvisable to market such Underwritten Securities on the terms and in the manner
contemplated by the General Disclosure Package, or (d) the Company shall have received notice that
any rating of any of the Company’s unsecured senior debt securities, guarantees or support
obligations shall have been lowered by any nationally recognized statistical rating organization
(as defined in Rule 15c3-1 under the Exchange Act) or any such organization has publicly announced
that it has under surveillance or review, with possible negative implications, the ratings of any
of the Company’s unsecured senior debt securities, guarantees or support obligations, or (e) there
shall have occurred any change, or any development involving a prospective change, in or affecting
particularly the business or properties of the Company or its subsidiaries which, in the
Representative’s reasonable judgment, materially impairs the investment quality of the Underwritten
Securities.
11. The respective obligations of the Underwriters under this Agreement with respect to the
Underwritten Securities are subject to the accuracy, on the date hereof and on the Delivery Date,
of the representations and warranties of the Company contained herein, to performance by the
Company of its obligations hereunder, and to each of the following additional terms and conditions
applicable to the Underwritten Securities:
(a) At or before the Delivery Date, no stop order suspending the effectiveness of the
Registration Statement nor any order directed to any document incorporated by reference in
the Prospectus or any Issuer Free Writing Prospectus shall have been issued, and prior to
that time no stop order proceeding shall have been initiated or threatened by the Commission
and no challenge shall have been made by the Commission or its staff as to the accuracy or
adequacy of any document incorporated by reference in the Prospectus
-15-
or any Issuer Free Writing Prospectus; any request of the Commission for inclusion of
additional information in the Registration Statement or any Statutory Prospectus or
otherwise shall have been complied with; and after the date hereof the Company shall not
have filed with the Commission any amendment or supplement to the Registration Statement,
any Statutory Prospectus, the Prospectus or any Issuer Free Writing Prospectus (or, in each
case, any document incorporated by reference therein) that shall have been disapproved by
the Representative.
(b) No Underwriter shall have discovered and disclosed to the Company on or prior to
the Delivery Date that the Registration Statement, the General Disclosure Package, the
Prospectus, or any Issuer Free Writing Prospectus contains an untrue statement of a fact
which is material or omits to state a fact which is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the authorization,
form and validity of this Agreement, the Underwritten Securities and the Indenture and the
form of the Registration Statement, the Prospectus (other than financial statements and
other financial data) and all other legal matters relating to this Agreement and the
transactions contemplated hereby shall be satisfactory in all respects to Xxxxxxxx &
Xxxxxxxx LLP, counsel for the Underwriters, and the Company shall have furnished to such
counsel all documents and information that they may reasonably request to enable them to
pass upon such matters.
(d) The Senior Executive Vice President and General Counsel to the Company shall have
furnished to the Representative his opinion addressed to the Underwriters and dated the
Delivery Date, as counsel, to the effect that:
(i) the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware; each material
subsidiary of the Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation; and each of the Company and its material subsidiaries has full
corporate power and authority to own its properties and conduct its business as
described in the General Disclosure Package, and is duly qualified to do business as
a foreign corporation and is in good standing under the laws of each jurisdiction
which requires such qualification wherein it owns or leases properties or conducts
business, except where the failure to so qualify would not have a material adverse
effect on the Company and its subsidiaries taken as a whole;
(ii) the Indenture has been duly authorized, executed and delivered, has been
duly qualified under the Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in accordance with its terms
(subject, as to enforcement of remedies, to applicable bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium or other similar laws
-16-
of general applicability relating to or affecting creditors’ rights generally
from time to time in effect and to general principles of equity);
(iii) to the best knowledge of such counsel, there is no pending or threatened
action, suit or proceeding before any court or governmental agency, authority, body
or any arbitrator involving the Company or any of its subsidiaries of a character
required to be disclosed in the Registration Statement which is not adequately
disclosed in the General Disclosure Package, and there is no franchise, contract or
other document of a character required to be described in the Registration Statement
or the General Disclosure Package, or to be filed as an exhibit, which is not
described or filed as required; and the statements included or incorporated by
reference in the General Disclosure Package describing any legal proceedings or
material contracts or agreements relating to the Company or any of its subsidiaries
fairly summarize such matters; the Underwritten Securities, the Indenture and any
Delayed Delivery Contracts conform to the descriptions thereof contained under the
following (or comparable) captions of the Prospectus: “Description of Debt
Securities” and “Plan of Distribution”;
(iv) the Immediate Delivery Underwritten Securities have been duly authorized,
executed, authenticated, issued and delivered and are valid and legally binding
obligations of the Company entitled to the benefits of the Indenture;
(v) the Delayed Delivery Underwritten Securities, if any, have been duly
authorized and, when executed, authenticated, issued and delivered to, and paid for
by, the respective purchasers thereof in accordance with the Indenture and the
related Delayed Delivery Contracts, will be valid and legally binding obligations of
the Company entitled to the benefits of the Indenture;
(vi) the Registration Statement and any amendments thereto have become
effective under the Securities Act; to the best knowledge of such counsel, no stop
order suspending the effectiveness of the Registration Statement has been issued, no
proceedings for that purpose have been instituted or threatened, and the
Registration Statement, the Prospectus and each amendment thereof or supplement
thereto as of their respective effective or issue dates (other than the financial
statements and other financial and statistical information contained therein as to
which such counsel need express no opinion) complied as to form in all material
respects with the applicable requirements of the Securities Act, the Exchange Act
and the Trust Indenture Act and the respective rules and regulations thereunder;
such counsel has no reason to believe that the Registration Statement, or any
amendment thereof, at the effective date established by the Prospectus pursuant to
Rule 430B(f), at the date of this Agreement or at the Delivery Date, contained any
untrue statement of a material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements therein not misleading;
such counsel has no reason to believe that the documents specified in a schedule to
such counsel’s letter, consisting of those included in the General
-17-
Disclosure Package, as of the Applicable Time or at the Delivery Date,
contained any untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading; and such counsel has no reason to believe that the Prospectus, at the
date of this Agreement or at the Delivery Date, included or includes any untrue
statement of a material fact or omitted or omits to state a material fact necessary
to make the statements therein, in the light of the circumstances under which they
were made, not misleading;
(vii) this Agreement and the Delayed Delivery Contracts, if any, have been duly
authorized, executed and delivered by the Company;
(viii) no order, consent, approval, authorization, registration or
qualification of or with any governmental agency or body having jurisdiction over
the Company or any of its properties is required for the issue and sale of the
Underwritten Securities or the consummation by the Company of the transactions
contemplated by this Agreement or the Indenture, except such as have been obtained
under the Securities Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state
securities or Blue Sky laws in connection with the sale and distribution of the
Underwritten Securities; and
(ix) neither the execution and delivery of the Indenture, this Agreement or any
Delayed Delivery Contracts, the issue and sale of the Underwritten Securities, nor
the consummation of any other of the transactions herein or therein contemplated nor
the fulfillment of the terms hereof or thereof will conflict with, result in a
breach of, or constitute a default under, the charter or by-laws of the Company or
the terms of any indenture or other agreement or instrument known to such counsel
and to which the Company or any of its material subsidiaries is a party or by which
the Company, any such subsidiary or any of their assets is bound, or any order or
regulation known to such counsel to be applicable to the Company or any such
subsidiary of any court, regulatory body, administrative agency, governmental body
or arbitrator having jurisdiction over the Company or any such subsidiary.
In rendering such opinion, such counsel may rely, as to the execution of the Indenture by the
Trustee, upon a certificate of the Trustee setting forth the facts as to such execution.
In rendering such opinion, such counsel may also rely (A) as to matters involving the
application of laws of any jurisdiction other than the State of Delaware, upon the opinion of other
counsel of good standing believed to be reliable, provided that such counsel states in such opinion
that such counsel and the Representative are justified in relying upon the opinion of such other
counsel, and (B) as to matters or fact, to the extent deemed proper, on certificates of responsible
officers of the Company and public officials.
-18-
In rendering such opinion with respect to clause (viii) above, insofar as it relates to
regulatory authorities in the states in which the Company or any material subsidiary operates, such
counsel may rely on the opinions of local counsel satisfactory to such counsel.
(e) The Representative shall have received from Xxxxxxxx & Xxxxxxxx LLP, counsel for
the Underwriters, such opinion or opinions, dated the date hereof, with respect to the
issuance and sale of the Underwritten Securities, the Indenture, the Registration Statement,
the General Disclosure Package, the Prospectus and other related matters as the
Representative may reasonably require, and the Company shall have furnished to such counsel
such documents as they request for the purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representative a certificate signed by its
Chairman of the Board or its President or a Senior Vice President and its Treasurer or an
Assistant Treasurer stating that after reasonable investigation and to the best of their
knowledge:
(i) the representations and warranties of the Company in this Agreement are
true and correct in all material respects on and as of the Delivery Date with the
same effect as if made on the Delivery Date; the Company has complied with all the
agreements and satisfied all the conditions on its part to be performed or satisfied
as a condition to the obligation of the Underwriters to purchase the Underwritten
Securities hereunder; and the conditions set forth in Paragraphs 11(a) and 11(h)
have been fulfilled;
(ii) as of the Applicable Time and as of the Delivery Date, the Registration
Statement and the General Disclosure Package did not include any untrue statement of
a material fact and did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; and
(iii) since the date of the most recent financial statements included or
incorporated by reference in the General Disclosure Package, there has been no
material adverse change in the condition (financial or other), earnings, business or
properties of the Company or its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the General Disclosure Package.
(g) (i) The Company shall have furnished to the Representative letters of Ernst & Young
LLP, addressed to the Board of Directors of the Company and the Underwriters and dated the
date of this Agreement and the Delivery Date, respectively, of the type described in the
American Institute of Certified Public Accountants’ AU Section 634 (“AU 634”); and (ii) the
Representative shall have received a letter, dated the Delivery Date and addressed to the
Representative, of any other independent auditor whose report is included or incorporated by
reference in the Registration Statement of the
-19-
type described in AU 634, and in each of (i) and (ii), covering such financial
statement items as counsel for the Underwriters may reasonably have requested.
(h) No order, consent, approval, authorization, registration or qualification of or
with any governmental agency or body having jurisdiction over the Company or any of its
properties is required for the issue and sale of the Underwritten Securities or the
consummation by the Company of the transactions contemplated by this Agreement or the
Indenture, except such as have been, or will have been prior to the Delivery Date, obtained
under the Securities Act and the Trust Indenture Act and such consents, approvals,
authorizations, registrations or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and distribution of the Underwritten
Securities by the Underwriters.
All opinions, letters, evidence and certificates mentioned above or elsewhere in this
Agreement shall be deemed to be in compliance with the provisions hereof only if they are in form
and substance satisfactory to the Representative.
12. If the Company shall fail to tender the Immediate Delivery Underwritten Securities for
delivery to the Underwriters for any reason permitted under this Agreement, or if the Underwriters
shall decline to purchase the Immediate Delivery Underwritten Securities for any reason permitted
under this Agreement (other than pursuant to Paragraph 6 or Paragraphs 10(a)-(d) hereof), the
Company shall reimburse the Underwriters for the reasonable fees and expenses of their counsel and
for such other out-of-pocket expenses as shall have been incurred by them in connection with this
Agreement and the proposed purchase of Immediate Delivery Underwritten Securities and the
solicitation of any purchases of the Delayed Delivery Underwritten Securities, and upon demand the
Company shall pay the full amount thereof to the Representative. If this Agreement is terminated
pursuant to Paragraph 6 hereof by reason of the default of one or more Underwriters or pursuant to
Paragraphs 10(a)-(d) hereof, the Company shall not be obligated to reimburse any Underwriter on
account of those expenses.
13. The Company shall be entitled to act and rely upon any request, consent, notice or
agreement by, or on behalf of, the Representative. Any notice by the Company to the Underwriters
shall be sufficient if given in writing or by facsimile transmission confirmed promptly in writing
addressed to the Representative at its address set forth in Schedule I hereto, and any notice by
the Underwriters to the Company shall be sufficient if given in writing or by facsimile
transmission confirmed promptly in writing addressed to the Company at AT&T Inc., 000 X. Xxxxx
Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, Telecopy Number: (000) 000-0000, Attention of the Senior
Vice President and Treasurer with a copy to the Senior Executive Vice President and General
Counsel, AT&T Inc., 000 X. Xxxxx Xxxxxx, 00xx Xxxxx, Xxxxxx, Xxxxx 00000, Telecopy Number: (000)
000-0000.
14. This Agreement shall be binding upon the Underwriters, the Company and their respective
successors. This Agreement and the terms and provisions hereof are for the sole benefit of only
those persons, except that (a) the representations, warranties, indemnities and agreements of the
Company contained in this Agreement shall also be deemed to be for the
-20-
benefit of the person or persons, if any, who control any Underwriter within the meaning of
Section 15 of the Securities Act, and (b) the indemnity agreement of the Underwriters contained in
Paragraph 9 hereof shall be deemed to be for the benefit of directors of the Company, officers of
the Company who have signed the Registration Statement and any person controlling the Company.
Nothing in this Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Paragraph 14, any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision contained herein.
15. For purposes of this Agreement, “business day” means any day on which the New York Stock
Exchange, Inc. is open for trading.
16. This Agreement may be executed by the parties hereto in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same instrument.
17. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAW OF NEW YORK.
-21-
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to us the enclosed duplicate hereof, whereupon this Agreement shall represent a binding
agreement between the Company and the several Underwriters.
| Very truly yours, AT&T INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Xxxxxxx X. Xxxxxxx | ||||
| Senior Executive Vice President and Chief Financial Officer | ||||
-22-
| The foregoing Agreement is hereby confirmed and accepted as of the
date first above written.
BANC OF AMERICA SECURITIES LLC |
||||
| By: | /s/ Xxxxx X. Xxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| CITIGROUP GLOBAL MARKETS INC. |
||||
| By: | /s/ Xxxxx X. Xxxxxxxxx | |||
| Name: | Xxxxx X. Xxxxxxxxx | |||
| Title: | Managing Director | |||
| XXXXXXX, XXXXX & CO. |
||||
| By: | /s/ Xxxxxxx, Sachs & Co. | |||
| (Xxxxxxx, Xxxxx & Co.) | ||||
| X.X. XXXXXX SECURITIES INC. |
||||
| By: | /s/ Xxxxxxx X. Xxxxxxx | |||
| Name: | Xxxxxxx X. Xxxxxxx | |||
| Title: | Vice President | |||
| Each for itself and as Representatives of the several Underwriters named in Schedule II to the foregoing Agreement. | ||||
-23-
SCHEDULE I
Underwriting Agreement, dated January 29, 2009 (the “Agreement”)
Registration Statement No. 333-143180
Applicable Time: 7:05 p.m. (Eastern time) on the date of the Agreement
Additional information comprising the General Disclosure Package as defined in Section 1(e): The
final term sheet attached as Schedule IV.
Representatives and Addresses:
Banc of America Securities LLC
Xxx Xxxxxx Xxxx
XX0-000-00-00
Xxx Xxxx, Xxx Xxxx 00000
Attention: High Grade Transaction Management/Legal
Xxx Xxxxxx Xxxx
XX0-000-00-00
Xxx Xxxx, Xxx Xxxx 00000
Attention: High Grade Transaction Management/Legal
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Xxxxx & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
X.X. Xxxxxx Securities Inc.
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Underwritten Securities:
(a) 4.85% Global Notes due 2014
Designation:
|
4.85% Global Notes due 2014 (the “2014 Notes”) | |
Principal Amount:
|
U.S.$1,000,000,000 | |
Date of Maturity:
|
February 15, 2014, at par | |
Interest Rate:
|
4.85% per annum | |
Interest Payment Dates:
|
Semi-annually on each February 15 and August 15, |
I-1
| commencing on August 15, 2009 | ||
Purchase Price:
|
99.644% | |
Price to Public:
|
99.994% | |
Underwriting Discount:
|
0.350% | |
Reallowance:
|
0.130% | |
Redemption Provisions:
|
At any time, on at least 30 days’, but not more than 60 days’, prior notice mailed to the registered address of each holder of the 2014 Notes. The redemption price will be equal to the greater of (1) 100% of the principal amount of the 2014 Notes to be redeemed or (2) the sum of the present values of the Remaining Scheduled Payments (as defined below) discounted to the redemption date, on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months), at a rate equal to the sum of the Treasury Rate (as defined below) and 45 basis points. | |
| “Treasury Rate” means, with respect to any redemption date for the 2014 Notes, the rate per annum equal to the semiannual equivalent yield to maturity or interpolation (on a day count basis) of the interpolated Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. | ||
| “Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the 2014 Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such 2014 Notes. | ||
| “Independent Investment Banker” means the Reference Treasury Dealers appointed by the Trustee after consultation with the Company. |
I-2
| “Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the average of all such quotations. | ||
| “Reference Treasury Dealer Quotations” means, with respect to the Reference Treasury Dealer and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third business day preceding such redemption date. | ||
| “Reference Treasury Dealer” means each of Banc of America Securities LLC, Citigroup Global Markets Inc., Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx Securities Inc. and their respective affiliates and, at the option of the Company, one other nationally recognized investment banking firm that is a primary U.S. Government Securities dealer in the United States (a “Primary Treasury Dealer”); provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, we will substitute therefor another Primary Treasury Dealer. | ||
| “Remaining Scheduled Payments” means, with respect to each 2014 Note to be redeemed, the remaining scheduled payments of principal of and interest on such 2014 Note that would be due after the related redemption date but for such redemption. If such redemption date is not an interest payment date with respect to such 2014 Note, the amount of the next succeeding scheduled interest payment on such 2014 Note will be reduced by the amount of interest accrued on such 2014 Note to such redemption date. | ||
| On and after the redemption date, interest will cease |
I-3
| to accrue on the 2014 Notes or any portion of the 2014 Notes called for redemption, unless the Company defaults in the payment of the redemption price and accrued interest. On or before the redemption date, the Company will deposit with a paying agent or the Trustee money sufficient to pay the redemption price of and accrued interest on the 2014 Notes to be redeemed on such date. If less than all of the 2014 Notes of any series are to be redeemed, the 2014 Notes to be redeemed shall be selected by the Trustee by lot or by such other method as the Trustee shall deem fair and appropriate. | ||
Form and Authorized
Denominations:
|
The 2014 Notes will be issued only in registered, book-entry form. The 2014 Notes will be represented by a global security or securities deposited with, or on behalf of, The Depository Trust Company, and registered in the name of Cede & Co., as nominee for The Depository Trust Company. | |
Delivery Date, Time
and Location:
|
9:00 a.m. (New York time) on February 3, 2009 at the offices of Xxxxxxxx & Xxxxxxxx LLP. | |
Offering Restrictions:
|
Each of the Underwriters severally represents and warrants to, and agrees with, the offering restrictions set forth in Schedule III hereto. | |
Additional Terms:
|
In addition to paragraph 10 of the Agreement, the obligations of the Underwriters under the Agreement may be terminated by the Representatives, in their absolute discretion, by notice given to and received by the Company prior to the delivery of and payment for the 2014 Notes, if, during the period beginning on the date of the Agreement to and including the Delivery Date, there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis or the declaration by the United States of war or a national emergency or any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which on the financial markets is material and adverse and is such as to make it, in the reasonable judgment of the Representatives, |
I-4
| impracticable or inadvisable to market such 2014 Notes on the terms and in the manner contemplated by the Prospectus. |
(b) 5.80% Global Notes due 2019
Designation:
|
5.80% Global Notes due 2019 (the “2019 Notes”) | |
Principal Amount:
|
U.S.$2,250,000,000 | |
Date of Maturity:
|
February 15, 2019, at par | |
Interest Rate:
|
5.80% per annum | |
Interest Payment Dates:
|
Semi-annually on each February 15 and August 15, commencing on August 15, 2009 | |
Purchase Price:
|
99.239% | |
Price to Public:
|
99.689% | |
Underwriting Discount:
|
0.450% | |
Reallowance:
|
0.17% | |
Redemption Provisions:
|
At any time, on at least 30 days’, but not more than 60 days’, prior notice mailed to the registered address of each holder of the 2019 Notes. The redemption price will be equal to the greater of (1) 100% of the principal amount of the 2019 Notes to be redeemed or (2) the sum of the present values of the Remaining Scheduled Payments (as defined below) discounted to the redemption date, on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months), at a rate equal to the sum of the Treasury Rate (as defined below) for that series plus 45 basis points. | |
| “Treasury Rate” means, with respect to any redemption date for the 2019 Notes, the rate per annum equal to the semiannual equivalent yield to maturity or interpolation (on a day count basis) of the |
I-5
| interpolated Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. | ||
| “Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the 2019 Notes to be redeemed that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such 2019 Notes. | ||
| “Independent Investment Banker” means the Reference Treasury Dealers appointed by the Trustee after consultation with the Company. | ||
| “Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the average of all such quotations. | ||
| “Reference Treasury Dealer Quotations” means, with respect to the Reference Treasury Dealer and any redemption date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third business day preceding such redemption date. | ||
| “Reference Treasury Dealer” means each of Banc of America Securities LLC, Citigroup Global Markets Inc., Xxxxxxx, Sachs & Co. and X.X. Xxxxxx Securities Inc. and their respective affiliates and, at the option of the Company, one other nationally recognized investment banking firm that is a primary U.S. Government Securities dealer in the United |
I-6
| States (a “Primary Treasury Dealer”); provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, we will substitute therefor another Primary Treasury Dealer. | ||
| “Remaining Scheduled Payments” means, with respect to each 2019 Note to be redeemed, the remaining scheduled payments of principal of and interest on such 2019 Note that would be due after the related redemption date but for such redemption. If such redemption date is not an interest payment date with respect to such 2019 Note, the amount of the next succeeding scheduled interest payment on such 2019 Note will be reduced by the amount of interest accrued on such 2019 Note to such redemption date. | ||
| On and after the redemption date, interest will cease to accrue on the 2019 Notes or any portion of the 2019 Notes called for redemption, unless the Company defaults in the payment of the redemption price and accrued interest. On or before the redemption date, the Company will deposit with a paying agent or the Trustee money sufficient to pay the redemption price of and accrued interest on the 2019 Notes to be redeemed on such date. If less than all of the 2019 Notes of any series are to be redeemed, the 2019 Notes to be redeemed shall be selected by the Trustee by lot or by such other method as the Trustee shall deem fair and appropriate. | ||
Form and Authorized
Denominations:
|
The 2019 Notes will be issued only in registered, book-entry form. The 2019 Notes will be represented by a global security or securities deposited with, or on behalf of, The Depository Trust Company, and registered in the name of Cede & Co., as nominee for The Depository Trust Company. | |
Delivery Date, Time
and Location:
|
9:00 a.m. (New York time) on February 3, 2009 at the offices of Xxxxxxxx & Xxxxxxxx LLP. | |
Offering Restrictions:
|
Each of the Underwriters severally represents and warrants to, and agrees with, the offering restrictions |
I-7
| set forth in Schedule III hereto. | ||
Additional Terms:
|
In addition to paragraph 10 of the Agreement, the obligations of the Underwriters under the Agreement may be terminated by the Representatives, in their absolute discretion, by notice given to and received by the Company prior to the delivery of and payment for the 2019 Notes, if, during the period beginning on the date of the Agreement to and including the Delivery Date, there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis or the declaration by the United States of war or a national emergency or any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which on the financial markets is material and adverse and is such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to market such 2019 Notes on the terms and in the manner contemplated by the Prospectus. |
(c) 6.55% Global Notes due 2039
Designation:
|
6.55% Global Notes due 2039 (the “2039 Notes”) | |
Principal Amount:
|
U.S.$2,250,000,000 | |
Date of Maturity:
|
February 15, 2039, at par | |
Interest Rate:
|
6.55% per annum | |
Interest Payment Dates:
|
Semi-annually on each February 15 and August 15, commencing on August 15, 2009 | |
Purchase Price:
|
98.687% | |
Price to Public:
|
99.437% | |
Underwriting Discount:
|
0.750% | |
Reallowance:
|
0.25% | |
Redemption Provisions:
|
At any time, on at least 30 days’, but not more than 60 days’, prior notice mailed to the registered address |
I-8
| of each holder of the 2039 Notes. The redemption price will be equal to the greater of (1) 100% of the principal amount of the 2039 Notes to be redeemed or (2) the sum of the present values of the Remaining Scheduled Payments (as defined below) discounted to the redemption date, on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months), at a rate equal to the sum of the Treasury Rate (as defined below) for that series plus 45 basis points. | ||
| “Treasury Rate” means, with respect to any redemption date for the 2039 Notes, the rate per annum equal to the semiannual equivalent yield to maturity or interpolation (on a day count basis) of the interpolated Comparable Treasury Issue, assuming a price for the Comparable Treasury Issue (expressed as a percentage of its principal amount) equal to the Comparable Treasury Price for such redemption date. | ||
| “Comparable Treasury Issue” means the United States Treasury security or securities selected by an Independent Investment Banker as having an actual or interpolated maturity comparable to the remaining term of the 2039 Notes that would be utilized, at the time of selection and in accordance with customary financial practice, in pricing new issues of corporate debt securities of a comparable maturity to the remaining term of such 2039 Notes. | ||
| “Independent Investment Banker” means the Reference Treasury Dealers appointed by the Trustee after consultation with the Company. | ||
| “Comparable Treasury Price” means, with respect to any redemption date, (1) the average of the Reference Treasury Dealer Quotations for such redemption date after excluding the highest and lowest of such Reference Treasury Dealer Quotations, or (2) if the Trustee obtains fewer than three such Reference Treasury Dealer Quotations, the average of all such quotations. | ||
| “Reference Treasury Dealer Quotations” means, with respect to the Reference Treasury Dealer and any |
I-9
| redemption date, the average, as determined by the Trustee, of the bid and asked prices for the Comparable Treasury Issue (expressed in each case as a percentage of its principal amount) quoted in writing to the Trustee by such Reference Treasury Dealer at 3:30 p.m., New York City time, on the third business day preceding such redemption date. | ||
| “Reference Treasury Dealer” means each of Banc of America Securities LLC, Citigroup Global Markets Inc., Xxxxxxx, Sachs & Co. and X.X. Xxxxxx Securities Inc. and their respective affiliates and, at the option of the Company, one other nationally recognized investment banking firm that is a primary U.S. Government Securities dealer in the United States (a “Primary Treasury Dealer”); provided, however, that if any of the foregoing shall cease to be a Primary Treasury Dealer, we will substitute therefor another Primary Treasury Dealer. | ||
| “Remaining Scheduled Payments” means, with respect to each 2039 Note to be redeemed, the remaining scheduled payments of principal of and interest on such 2039 Note that would be due after the related redemption date but for such redemption. If such redemption date is not an interest payment date with respect to such 2039 Note, the amount of the next succeeding scheduled interest payment on such 2039 Note will be reduced by the amount of interest accrued on such 2039 Note to such redemption date. | ||
| On and after the redemption date, interest will cease to accrue on the 2039 Notes or any portion of the 2039 Notes called for redemption, unless the Company defaults in the payment of the redemption price and accrued interest. On or before the redemption date, the Company will deposit with a paying agent or the Trustee money sufficient to pay the redemption price of and accrued interest on the 2039 Notes to be redeemed on such date. If less than all of the 2039 Notes of any series are to be redeemed, the 2039 Notes to be redeemed shall be selected by the Trustee by lot or by such other |
I-10
| method as the Trustee shall deem fair and appropriate. | ||
Form and Authorized
Denominations:
|
The 2039 Notes will be issued only in registered, book-entry form. The 2039 Notes will be represented by a global security or securities deposited with, or on behalf of, The Depository Trust Company, and registered in the name of Cede & Co., as nominee for The Depository Trust Company. | |
Delivery Date, Time
and Location:
|
9:00 a.m. (New York time) on February 3, 2009 at the offices of Xxxxxxxx & Xxxxxxxx LLP. | |
Offering Restrictions:
|
Each of the Underwriters severally represents and warrants to, and agrees with, the offering restrictions set forth in Schedule III hereto. | |
Additional Terms:
|
In addition to paragraph 10 of the Agreement, the obligations of the Underwriters under the Agreement may be terminated by the Representatives, in their absolute discretion, by notice given to and received by the Company prior to the delivery of and payment for the 2039 Notes, if, during the period beginning on the date of the Agreement to and including the Delivery Date, there shall have occurred any outbreak or material escalation of hostilities or other calamity or crisis or the declaration by the United States of war or a national emergency or any change in national or international financial, political or economic conditions or currency exchange rates or exchange controls the effect of which on the financial markets is material and adverse and is such as to make it, in the reasonable judgment of the Representatives, impracticable or inadvisable to market such 2039 Notes on the terms and in the manner contemplated by the Prospectus. |
I-11
SCHEDULE II
| Principal Amount | Principal Amount | Principal Amount | ||||||||||
| Underwriters | of 2014 Notes | of 2019 Notes | of 2039 Notes | |||||||||
Banc of America Securities LLC |
U.S.$ 230,000,000 | U.S.$ 517,500,000 | U.S.$ | — | ||||||||
Citigroup Global Markets Inc. |
— | 517,500,000 | 517,500,000 | |||||||||
Xxxxxxx, Sachs & Co. |
230,000,000 | — | 517,500,000 | |||||||||
X.X. Xxxxxx Securities Inc. |
230,000,000 | 517,500,000 | 517,500,000 | |||||||||
Barclays Capital Inc. |
73,334,000 | 165,000,000 | 165,000,000 | |||||||||
Deutsche Bank Securities Inc. |
73,333,000 | 165,000,000 | 165,000,000 | |||||||||
Greenwich Capital Markets, Inc. |
73,333,000 | 165,000,000 | 165,000,000 | |||||||||
Xxxxxxx Capital Markets, LLC |
22,500,000 | 50,625,000 | 50,625,000 | |||||||||
Mitsubishi UFJ Securities International plc |
28,000,000 | 50,625,000 | 50,625,000 | |||||||||
X.X. Xxxx & Company |
22,500,000 | 50,625,000 | 50,625,000 | |||||||||
The Xxxxxxxx Capital Group, L.P. |
17,000,000 | 50,625,000 | 50,625,000 | |||||||||
Total |
U.S.$1,000,000,000 | U.S.$2,250,000,000 | U.S.$ | 2,250,000,000 | ||||||||
| Total | U.S.$5,500,000,000 | |||||||||||
II-1
SCHEDULE III
OFFERING RESTRICTIONS
OFFERING RESTRICTIONS
General
The Securities are offered for sale in the United States and in jurisdictions outside the
United States, subject to applicable law.
Each of the Underwriters has agreed that it will not offer, sell or deliver any of the
Securities, directly or indirectly, or distribute the prospectus supplement or the accompanying
prospectus or any other offering material relating to the Securities, in or from any jurisdiction
except under circumstances that will to the best knowledge and belief of such Underwriter result in
compliance with the applicable laws and regulations thereof and which will not impose any
obligations on the Company except as set forth in the Agreement.
United Kingdom
Each underwriter has represented and agreed that: (i) it has only communicated or caused to be
communicated and will only communicate or cause to be communicated an invitation or inducement to
engage in investment activity (within the meaning of Section 21 of the Financial Services and
Markets Xxx 0000, known as “FSMA”) received by it in connection with the issue or sale of the
Securities in circumstances in which Section 21(1) of the FSMA does not apply to AT&T; and (ii) it
has complied and will comply with all applicable provisions of the FSMA with respect to anything
done by it in relation to the Securities in, from or otherwise involving the United Kingdom.
European Union Prospectus Directive
In relation to each Member State of the European Economic Area (Iceland, Norway and
Liechtenstein, in addition to the member states of the European Union) which has implemented the
Prospectus Directive (each a “Relevant Member State”), each underwriter has represented and agreed
that with effect from and including the date on which the Prospectus Directive is implemented in
that Relevant Member State (the “Relevant Implementation Date”) it has not made and will not make
an offer of Securities to the public in that Relevant Member State prior to the publication of a
prospectus in relation to the Securities which has been approved by the competent authority in that
Relevant Member State or, where appropriate, approved in another Relevant Member State and notified
to the competent authority in that Relevant Member State, all in accordance with the Prospectus
Directive, except that it may, with effect from and including the Relevant Implementation Date,
make an offer of Securities to the public in that Relevant Member State at any time:
| • | to legal entities which are authorized or regulated to operate in the financial markets or, if not so authorized or regulated, whose corporate purpose is solely to invest in securities; |
III-1
| • | to any legal entity which has two or more of (1) an average of at least 250 employees during the last financial year; (2) a total balance sheet of more than €43,000,000 and (3) an annual net turnover of more than €50,000,000, as shown in its last annual or consolidated accounts; | ||
| • | to fewer than 100 natural or legal persons (other than qualified investors as defined in the Prospectus Directive) subject to obtaining the prior consent of the representatives for any such offer; or | ||
| • | in any other circumstances which do not require the publication by AT&T of a prospectus pursuant to Article 3 of the Prospectus Directive. |
For the purposes of this provision, the expression “offer of Securities to the public” in
relation to any Securities in any Relevant Member State means the communication in any form and by
any means of sufficient information on the terms of the offer and the Securities to be offered so
as to enable an investor to decide to purchase or subscribe the Securities, as the same may be
varied in that Member State by any measure implementing the Prospectus Directive in that Member
State, and the expression “Prospectus Directive” means Directive 2003/71/EC and includes any
relevant implementing measure in each Relevant Member State.
Japan
The Securities have not been and will not be registered under the Securities and Exchange Law
of Japan, and each of the Underwriters and each of its affiliates has represented and agreed that
it has not offered or sold, and it will not offer or sell, directly or indirectly, any of the
Securities in or to residents of Japan or to any persons for reoffering or resale, directly or
indirectly in Japan or to any resident of Japan, except pursuant to any exemption from the
registration requirements of the Securities and Exchange Law available thereunder and in compliance
with the other relevant laws and regulations of Japan.
Hong Kong
The Securities may not be offered or sold by means of any document other than to persons whose
ordinary business is to buy or sell shares or debentures, whether as principal or agent, or in
circumstances which do not constitute an offer to the public within the meaning of the Companies
Ordinance (Cap. 32) of Hong Kong, and no advertisement, invitation or document relating to the
Securities may be issued, whether in Hong Kong or elsewhere, which is directed at, or the contents
of which are likely to be accessed or read by, the public in Hong Kong (except if permitted to do
so under the securities laws of Hong Kong) other than with respect to Securities which are or are
intended to be disposed of only to persons outside Hong Kong or only to “professional investors”
within the meaning of the Securities and Futures Ordinance (Cap. 571) of Hong Kong and any rules
made thereunder.
III-2
Singapore
The prospectus supplement has not been registered as a prospectus with the Monetary Authority
of Singapore. Accordingly, the prospectus supplement and any other document or material in
connection with the offer or sale, or invitation for subscription or purchase, of the Securities
may not be circulated or distributed, nor may the Securities be offered or sold, or be made the
subject of an invitation for subscription or purchase, whether directly or indirectly, to persons
in Singapore other than (i) to an institutional investor under Section 274 of the Securities and
Futures Act, Chapter 289 of Singapore (the “SFA”), (ii) to a relevant person, or any person
pursuant to Section 257(1A), and in accordance with the conditions, specified in Section 275 of the
SFA, or (iii) otherwise pursuant to, and in accordance with the conditions of, any other applicable
provision of the SFA.
Whether the Securities are subscribed or purchased under Section 275 by a relevant person
which is: (a) a corporation (which is not an accredited investor) the sole business of which is to
hold investments and the entire share capital of which is owned by one or more individuals, each of
whom is an accredited investor; or (b) a trust (where the trustee is not an accredited investor)
whose sole purpose is to hold investments and each beneficiary is an accredited investor, shares,
debentures, and units of shares and debentures of that corporation or the beneficiaries’ rights and
interest in that trust shall not be transferable for six months after that corporation or that
trust has acquired the Securities under Section 275 except: (1) to an institutional investor under
Section 274 of the SFA or to a relevant person, or any person pursuant to Section 275(1A), and in
accordance with the conditions, specified in Section 275 of the SFA; (2) where no consideration is
given for the transfer; or (3) by operation of law.
III-3
SCHEDULE IV
Final Term Sheet
January 29, 2009
$5,500,000,000
Final Term Sheet
January 29, 2009
$5,500,000,000
AT&T Inc.
4.85% GLOBAL NOTES DUE 2014
5.80% GLOBAL NOTES DUE 2019
6.55% GLOBAL NOTES DUE 2039
4.85% GLOBAL NOTES DUE 2014
5.80% GLOBAL NOTES DUE 2019
6.55% GLOBAL NOTES DUE 2039
ISSUER:
|
AT&T Inc. | |
TITLE OF SECURITIES:
|
4.85% Global Notes due 2014, 5.80% Global Notes due 2019 and 6.55% Global Notes due 2039 (collectively, the “Notes”) | |
TRADE DATE:
|
January 29, 2009 | |
SETTLEMENT DATE (T+3):
|
February 3, 2009 | |
MATURITY DATE:
|
February 15, 2014, at par, for 4.85% Global Notes due 2014 | |
| February 15, 2019, at par, for 5.80% Global Notes due 2019 | ||
| February 15, 2039, at par, for 6.55% Global Notes due 2039 | ||
AGGREGATE PRINCIPAL AMOUNT
OFFERED:
|
Global Notes due 2014: $1,000,000,000 Global Notes due 2019: $2,250,000,000 |
|
| Global Notes due 2039: $2,250,000,000 | ||
PRICE TO PUBLIC (ISSUE PRICE):
|
Global Notes due 2014: 99.994% | |
| Global Notes due 2019: 99.689% | ||
| Global Notes due 2039: 99.437% | ||
GROSS SPREAD:
|
Global Notes due 2014: 0.350% | |
| Global Notes due 2019: 0.450% | ||
| Global Notes due 2039: 0.750% | ||
PRICE TO AT&T INC.:
|
Global Notes due 2014: 99.644% | |
| Global Notes due 2019: 99.239% | ||
| Global Notes due 2039: 98.687% |
IV-1
NET PROCEEDS:
|
Global Notes due 2014: $996,440,000 | |
| Global Notes due 2019: $2,232,877,500 | ||
| Global Notes due 2039: $2,220,457,500 | ||
UNDERWRITERS’ REIMBURSEMENT
OF AT&T INC.’S EXPENSES:
|
Underwriters to reimburse $710,000 of AT&T Inc.’s expenses | |
USE OF PROCEEDS:
|
General corporate purposes | |
INTEREST RATE:
|
Global Notes due 2014: 4.85% per annum | |
| Global Notes due 2019: 5.80% per annum | ||
| Global Notes due 2039: 6.55% per annum | ||
INTEREST PAYMENT DATES:
|
Global Notes due 2014: Semi-annually on each February 15 and August 15, commencing on August 15, 2009 | |
| Global Notes due 2019: Semi-annually on each February 15 and August 15, commencing on August 15, 2009 | ||
| Global Notes due 2039: Semi-annually on each February 15 and August 15, commencing on August 15, 2009 | ||
DENOMINATIONS:
|
Minimum of $2,000 and integral multiples of $1,000 thereafter | |
OPTIONAL REDEMPTION:
|
At any time in whole or from time to time in part, at a make-whole call equal to the greater of (i) 100% of the principal amount of the Global Notes due 2014, the Global Notes due 2019 or the Global Notes due 2039, as applicable, to be redeemed or (ii) the sum of the present values of the remaining scheduled payments of principal and interest discounted to the redemption date, on a semiannual basis (assuming a 360-day year consisting of twelve 30-day months), at a rate equal to the sum of the Treasury Rate plus 45 basis points for the Global Notes due 2014, at a rate equal to the sum of the Treasury Rate plus 45 basis points for the Global Notes due 2019 and at a rate equal to the sum of the Treasury Rate plus 45 basis points for the Global Notes due 2039. | |
INDENTURE AND RANKING:
|
The Notes will be issued under an indenture, dated as of November 1, 1994, between AT&T Inc. and The Bank of New York Mellon, as trustee. The Notes will be AT&T Inc.’s unsecured and unsubordinated obligations and will rank pari passu with all other indebtedness issued under the |
IV-2
| indenture. | ||
RATINGS:
|
Xxxxx’x: A2 (Stable), S&P: A (Stable), Fitch: A (Stable) | |
JOINT BOOKRUNNERS:
|
Banc of America Securities LLC | |
| Citigroup Global Markets Inc. | ||
| Xxxxxxx, Xxxxx & Co. | ||
| X.X. Xxxxxx Securities Inc. | ||
CUSIP NUMBERS:
|
Global Notes due 2014: 00000XXX0 | |
| Global Notes due 2019: 00000XXX0 | ||
| Global Notes due 2039: 00000XXX0 | ||
ISIN NUMBERS:
|
Global Notes due 2014: US00206RAQ56 | |
| Global Notes due 2019: US00206RAR30 | ||
| Global Notes due 2039: US00206RAS13 |
ALLOCATION:
| Principal Amount | Principal Amount | Principal Amount | ||||||||||
| Underwriters | of 2014 Notes | of 2019 Notes | of 2039 Notes | |||||||||
Banc of America
Securities LLC. |
U.S.$ | 230,000,000 | U.S.$ | 517,500,000 | U.S.$ | — | ||||||
Citigroup Global
Markets Inc. |
— | 517,500,000 | 517,500,000 | |||||||||
Xxxxxxx, Xxxxx & Co. |
230,000,000 | — | 517,500,000 | |||||||||
X.X. Xxxxxx
Securities Inc. |
230,000,000 | 517,500,000 | 517,500,000 | |||||||||
Barclays Capital Inc. |
73,334,000 | 165,000,000 | 165,000,000 | |||||||||
Deutsche Bank
Securities Inc. |
73,333,000 | 165,000,000 | 165,000,000 | |||||||||
Greenwich Capital
Markets, Inc. |
73,333,000 | 165,000,000 | 165,000,000 | |||||||||
Xxxxxxx Capital
Markets, LLC |
22,500,000 | 50,625,000 | 50,625,000 | |||||||||
Mitsubishi UFJ
Securities
International
plc |
28,000,000 | 50,625,000 | 50,625,000 | |||||||||
X.X. Xxxx &
Company |
22,500,000 | 50,625,000 | 50,625,000 | |||||||||
The Xxxxxxxx Capital
Group, L.P. |
17,000,000 | 50,625,000 | 50,625,000 | |||||||||
Total |
U.S.$ | 1,000,000,000 | U.S.$ | 2,250,000,000 | U.S.$ | 2,250,000,000 | ||||||
Total |
U.S.$ | 5,500,000,000 | ||||||||||
| REFERENCE DOCUMENT: | Prospectus Supplement, dated January 29, 2009; Prospectus, dated May 23, 2007. |
THE ISSUER HAS FILED A REGISTRATION STATEMENT (INCLUDING A PROSPECTUS) WITH THE SEC FOR THE
OFFERING TO WHICH THIS COMMUNICATION RELATES. BEFORE YOU INVEST, YOU SHOULD READ THE
IV-3
PROSPECTUS IN THAT REGISTRATION STATEMENT AND OTHER DOCUMENTS THE ISSUER HAS FILED WITH THE
SEC FOR MORE COMPLETE INFORMATION ABOUT THE ISSUER AND THIS OFFERING. YOU MAY GET THESE DOCUMENTS
FOR FREE BY VISITING XXXXX ON THE SEC WEB SITE AT XXX.XXX.XXX. ALTERNATIVELY, THE ISSUER, ANY
UNDERWRITER OR ANY DEALER PARTICIPATING IN THE OFFERING WILL ARRANGE TO SEND YOU THE PROSPECTUS IF
YOU REQUEST IT BY CALLING BANC OF AMERICA SECURITIES LLC TOLL FREE AT 1-800-294-1322, CITIGROUP
GLOBAL MARKETS INC. TOLL FREE AT 1-877-858-5407, XXXXXXX, XXXXX & CO. TOLL FREE AT 0-000-000-0000,
AND X.X. XXXXXX SECURITIES INC. COLLECT AT 0-000-000-0000.
ANY DISCLAIMERS OR OTHER NOTICES THAT MAY APPEAR BELOW ARE NOT APPLICABLE TO THIS
COMMUNICATION AND SHOULD BE DISREGARDED. SUCH DISCLAIMERS OR OTHER NOTICES WERE AUTOMATICALLY
GENERATED AS A RESULT OF THIS COMMUNICATION BEING SENT VIA BLOOMBERG OR ANOTHER EMAIL SYSTEM. A
SECURITIES RATING IS NOT A RECOMMENDATION TO BUY, SELL OR HOLD SECURITIES AND MAY BE REVISED OR
WITHDRAWN AT ANY TIME.
IV-4
EXHIBIT A
AT&T INC.
DELAYED DELIVERY CONTRACT
, 200
AT&T Inc.
000 X. Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
000 X. Xxxxx Xxxxxx
Xxxxxx, Xxxxx 00000
Ladies and Gentlemen:
The undersigned hereby agrees to purchase from AT&T Inc., a Delaware corporation (the
“Company”), and the Company hereby agrees to sell to the undersigned, $ principal amount of
the Company’s above-captioned securities (“Securities”), offered by the Company’s prospectus, dated
, as supplemented by the prospectus supplement, dated
(collectively, the “Prospectus”), receipt of a copy of which is hereby acknowledged, at a purchase
price of % of the principal amount thereof plus accrued interest from
to the Delivery Date (as defined in the next paragraph) and on the further terms and conditions set
forth in this Contract.
Payment for and delivery of the Securities to be purchased by the undersigned shall be made on
, 200 , herein called the “Delivery Date”.
At 10:00 A.M., New York time, on the Delivery Date, the Securities to be purchased by the
undersigned hereunder will be delivered by the Company to the undersigned, and the undersigned will
accept delivery of such Securities and will make payment to the Company of the purchase price
therefore at the office of The Bank of New York. Payment will be by certified or official bank
check or wire transfer payable in Federal (same day) funds settled through the New York Clearing
House, or such other Clearing House as the Company may designate, to or upon the order of the
Company. The Securities will be delivered in such authorized forms and denominations and
registered in such names as the undersigned may designate by written or telegraphic communication
addressed to the Company not less than two full business days prior to the Delivery Date or, if the
undersigned fails to make a timely designation in the foregoing manner, in the form of one
definitive fully registered certificate representing the Securities in the above principal amount,
registered in the name of the undersigned.
This Contract will terminate and be of no further force and effect after ,
200 , unless (i) on or before such date it shall have been executed and delivered by both parties
hereto
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and (ii) the Company shall have sold to the Underwriters named in the Prospectus the Immediate
Delivery Underwritten Securities (as defined in the Underwriting Agreement referred to in the
Prospectus). The Company will mail or deliver to the undersigned at its address set forth below a
notice to that effect, stating the date of the occurrence thereof, accompanied by copies of the
opinion of counsel for the Company delivered to such Underwriters pursuant to Paragraph 11(d) of
the Underwriting Agreement.
The obligation of the undersigned to accept delivery of and make payment for the Securities on
the Delivery Date will be subject to the condition that the Securities shall not, on the Delivery
Date, be an investment prohibited by the laws of the jurisdiction to which the undersigned is
subject, the undersigned hereby representing that such an investment is not so prohibited on the
date hereof.
This Contract will inure to the benefit of and be binding upon the parties hereto and their
respective successors but will not be assignable by either party hereto without the written consent
of the other.
This Contract may be executed by any of the parties hereto in any number of counterparts, each
of which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same instrument.
It is understood that acceptance of any Delayed Delivery Contract (as defined in said
Underwriting Agreement) is in the Company’s sole discretion and, without limiting the foregoing,
need not be on a first-come, first-served basis. If this Contract is acceptable to the
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Company, it is requested that the Company sign the form of acceptance below and mail or deliver one
of the counterparts hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart is so mailed or
delivered.
| Very truly yours, | ||||||||
| By | ||||||||
| Title | ||||||||
| Address |
||||||||
| Accepted as of , 200 | ||||||||
| AT&T INC. | ||||||||
By |
||||||||
| Title: | ||||||||
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