Exhibit 1
BELLSOUTH CORPORATION
$400,000,000 5.20% NOTES DUE 2016
UNDERWRITING AGREEMENT
DECEMBER 16, 2004
UNDERWRITING AGREEMENT
December 16, 2004
BellSouth Corporation
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇., ▇.▇.
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Dear Ladies and Gentlemen:
We (the "Managers") understand that BellSouth Corporation, a Georgia
corporation (the "Company"), proposes to issue and sell $400,000,000 aggregate
principal amount of its 5.20% Notes due 2016 (the "Offered Securities"). The
Offered Securities will be issued pursuant to an indenture dated as of August
13, 2004 between the Company and Regions Bank, as Trustee.
Subject to the terms and conditions set forth herein or incorporated by
reference herein, the Company hereby agrees to sell and the underwriters named
below (the "Underwriters") agree to purchase, severally and not jointly, the
principal amount of the Offered Securities set forth below opposite their names
at 99.403% of their principal amount, plus accrued interest, if any, from
December 22, 2004 to the date of payment and delivery:
NAME PRINCIPAL AMOUNT
▇.▇. ▇▇▇▇▇▇ Securities Inc. $ 110,000,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated 110,000,000
Deutsche Bank Securities Inc. 40,000,000
HSBC Securities (USA) Inc. 40,000,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇ 40,000,000
Incorporated
▇▇▇▇▇▇▇▇ & Partners, L.P. 20,000,000
Credit Suisse First Boston LLC 20,000,000
Mitsubishi Securities International plc 20,000,000
Total......................... $ 400,000,000
The Underwriters will pay for such Offered Securities by wire transfer
of immediately available funds upon delivery thereof through the book-entry
facilities of The Depository Trust Company at 10:00 A.M. (New York time) on
December 22, 2004, or at such other time, not later than December 29, 2004, as
shall be designated by the Managers.
The Offered Securities shall have the following terms:
Maturity: December 15, 2016
Interest Rate: 5.20%
Redemption Provisions: The Company may redeem the Offered Securities in
whole at any time or in part from time to time at a redemption price
equal to the greater of (i) 100% of their principal amount or (ii) the
sum of the present values of the remaining scheduled payments of
principal and interest discounted to the date of redemption on a
semi-annual basis at the applicable Treasury Rate (as set forth in the
prospectus
supplement dated the date hereof) plus 25 basis points, plus, in each
case, accrued and unpaid interest on the principal amount being
redeemed to the redemption date.
Interest Payment Dates: June 15 and December 15, commencing
June 15, 2005.
Initial Public Offering Price: 99.878%
Each Underwriter, on behalf of itself and each of its affiliates that
participates in the initial distribution of the Offered Securities, severally
and not jointly, represents to and agrees with the Company as follows:
(a)(i) it has not offered or sold and, prior to the expiry of a period
of six months from the Closing Date, will not offer or sell any Offered
Securities to persons in the United Kingdom except to persons whose ordinary
activities involve them in acquiring, holding, managing or disposing of
investments (as principal or agent) for the purposes of their businesses or
otherwise in circumstances which have not resulted and will not result in an
offer to the public in the United Kingdom within the meaning of the Public
Offers of Securities Regulations 1995; (ii) it has only communicated or caused
to be communicated and will only communicate or cause to be communicated any
invitation or inducement to engage in investment activity (within the meaning of
section 21 of the Financial Services and Markets Act 2000 ("FSMA")) received by
it in connection with the issue or sale of any Offered Securities in
circumstances in which section 21(1) of the FSMA does not apply to the Company;
and (iii) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the Offered Securities
in, from or otherwise involving the United Kingdom;
(b) it has not, directly or indirectly, offered or sold and will not,
directly or indirectly, offer or sell in the Netherlands any Offered Securities
with a denomination of less than EUR50,000 (or its foreign currency equivalent)
other than to persons who trade or invest in securities in the conduct of a
profession or business (which include banks, stockbrokers, insurance companies,
pension funds, other institutional investors and finance companies and treasury
departments of large enterprises) unless one of the other exemptions from or
exceptions to the prohibition contained in article 3 of the Dutch Securities
Transactions Supervision Act 1995 (Wet toezicht effectenverkeer 1995) is
applicable and the conditions attached to such exemption or exception are
complied with; and
(c) it has agreed that it will not offer or sell any Offered
Securities, directly or indirectly, in Japan or to, or for the benefit of, any
resident of Japan (which term as used herein means any person resident in Japan,
including any corporation or other entity organized under the laws of Japan), or
to others for re-offering or resale, directly or indirectly, in Japan or to a
resident of Japan, except pursuant to an exemption from the registration
requirements of, and otherwise in compliance with, the Securities and Exchange
Law of Japan and any other applicable laws, regulations and ministerial
guidelines of Japan.
All the provisions contained in the document entitled the BellSouth
Corporation Underwriting Agreement Standard Provisions (Debt) dated August 17,
2004 (the "Standard Provisions"), a copy of which you have previously received,
are herein incorporated by reference in their entirety and shall be deemed to be
a part of this Agreement to the same extent as if such provisions had been set
forth in full herein.
Any references to "Manager" in the Standard Provisions shall be deemed
to refer to the Managers as defined above; except that in Section IX of the
Standard Provisions, the references
to "Manager" shall be deemed to refer to ▇.▇. ▇▇▇▇▇▇ Securities Inc. and ▇▇▇▇▇▇
▇▇▇▇▇▇▇ & Co. Incorporated.
Section V(d) of the Standard Provisions is hereby amended to read as
follows: "The Manager shall have received on the Closing Date letters, dated the
Closing Date, in form and substance satisfactory to the Manager, from each of
PricewaterhouseCoopers LLP and Ernst & Young LLP, independent public
accountants, containing statements and information of the type ordinarily
included in accountants' `comfort letters' to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference into the Registration Statement and the Prospectus."
Very truly yours,
▇.▇. ▇▇▇▇▇▇ SECURITIES INC.
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & CO. INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
--------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇ III
Title: Executive Director
Acting on behalf of themselves
and the several Underwriters
named above
Accepted:
BELLSOUTH CORPORATION
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Title: Vice President & Treasurer
BELLSOUTH CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS (DEBT)
AUGUST 17, 2004
From time to time, BellSouth Corporation, a Georgia corporation (the
"Company"), may enter into one or more underwriting agreements that provide for
the sale of designated securities to the several underwriters named therein. The
standard provisions set forth herein may be incorporated by reference in any
such underwriting agreement (an "Underwriting Agreement"). The Underwriting
Agreement, including the provisions incorporated therein by reference, is herein
referred to as this Agreement. Unless otherwise defined herein, terms defined in
the Underwriting Agreement are used herein as therein defined.
I.
The Company proposes to issue, from time to time, debt securities (the
"Securities") which will be issued pursuant to the provisions of an Indenture
(each, the "Indenture") between the Company and the Trustee named therein in
substantially the form as the indentures filed as exhibits to Registration
Statement No. 333-117772. The Securities may have varying designations,
maturities, rates and times of payment of interest, if any, selling prices,
redemption terms, if any, and other specific terms.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Securities and will file with the Commission a prospectus supplement (the
"Prospectus Supplement") specifically relating to a series of Securities issued
pursuant to the Indenture (the "Offered Securities") pursuant to Rule 424 under
the Securities Act of 1933 (the "Securities Act"). The term Registration
Statement means the registration statement as amended to the date of the
Underwriting Agreement, together with any related registration statement filed
with the Commission pursuant to Rule 462(b) under the Securities Act. The term
Basic Prospectus means the last dated prospectus included in the Registration
Statement. The term Prospectus means the Basic Prospectus together with the
Prospectus Supplement. The term Preliminary Prospectus means a preliminary
prospectus supplement, if any, specifically relating to the Offered Securities,
together with the Basic Prospectus. As used herein, the terms "Registration
Statement", "Basic Prospectus", "Prospectus" and "Preliminary Prospectus" shall
include in each case the material, if any, incorporated by reference therein.
The term Underwriters' Securities means the Offered Securities to be
purchased by the Underwriters herein. The term Contract Securities means the
Offered Securities, if any, to be purchased pursuant to the delayed delivery
contracts referred to below.
II.
If the Prospectus provides for sales of Offered Securities pursuant to
delayed delivery contracts, the Company hereby authorizes the Underwriters to
solicit offers to purchase Contract Securities on the terms and subject to the
conditions set forth in the Prospectus pursuant to delayed delivery contracts
substantially in the form of Schedule I attached hereto ("Delayed Delivery
Contracts") but with such changes therein as the Company may authorize or
approve. Delayed Delivery Contracts are to be with institutional investors
approved by the Company and of the types set forth in the Prospectus. On the
Closing Date (as hereinafter defined), the Company will pay the Manager as
compensation, for the accounts of the Underwriters, the fee set forth in the
Underwriting Agreement in respect of the principal amount of Contract
Securities. The Underwriters will not have any responsibility in respect of the
validity or the performance
of the Delayed Delivery Contracts.
If the Company executes and delivers Delayed Delivery Contracts with
institutional investors, the Contract Securities shall be deducted from the
Offered Securities to be purchased by the several Underwriters and the aggregate
principal amount of Offered Securities to be purchased by each Underwriter shall
be reduced pro rata in proportion to the principal amount of Offered Securities
set forth opposite each Underwriter's name in the Underwriting Agreement, except
to the extent that the Manager determines that such reduction shall be otherwise
and so advises the Company.
III.
The Company is advised by the Manager that the Underwriters propose to
make a public offering of the Underwriters' Securities as soon after this
Agreement is entered into as in the Manager's judgment is advisable. The terms
of the public offering of the Underwriters' Securities are set forth in the
Prospectus.
IV.
Payment for the Underwriters' Securities shall be made by certified or
official bank check or checks payable to the order of the Company in New York
Clearing House funds or by wire transfer of immediately available funds (as
specified in the Underwriting Agreement) at the time and place set forth in the
Underwriting Agreement, upon delivery to the Manager for the respective accounts
of the several Underwriters of the Underwriters' Securities registered in such
names and in such denominations as the Manager shall request in writing not less
than two full business days prior to the date of the delivery (through the
book-entry facilities of The Depository Trust Company, if specified in the
Underwriting Agreement). The time and date of such payment and delivery of the
Underwriters' Securities are herein referred to as the Closing Date.
V.
The several obligations of the Underwriters hereunder are subject to
the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for such
purpose shall have been instituted or threatened by the Commission, and
there shall have been no material adverse change and no development
which, in the reasonable judgment of the Manager, involves a
substantial likelihood of a prospective material adverse change in the
condition of the Company and its subsidiaries, taken as a whole, from
that set forth in the Registration Statement and the Prospectus.
(b) The Manager shall have received on the Closing Date an
opinion (or opinions) of counsel for the Company, who may be an
employee of the Company, dated the Closing Date, substantially to the
effect set forth in Exhibit A.
(c) The Manager shall have received on the Closing Date an
opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, dated
the Closing Date, substantially to the effect set forth herein in
Exhibit B.
(d) The Manager shall have received on the Closing Date a
letter, dated the Closing Date, in form and substance satisfactory to
the Manager, from PricewaterhouseCoopers LLP, independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and certain financial
information contained in or incorporated by reference into the
Registration Statement and the Prospectus.
(e) The Manager shall have received on the Closing Date a
certificate signed by the President, any Vice President or the
Treasurer or Assistant Treasurer of the Company to the effect that the
signer of such certificate has examined the Registration Statement,
the Prospectus and this Agreement and that:
(i) the representations and warranties of the Company
herein are true and correct in all material respects on and as
of the Closing Date, and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order suspending the effectiveness of
the Registration Statement has been issued, and no proceedings
for that purpose have been instituted or, to the Company's
knowledge, threatened by the Commission; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the
Prospectus, there has been no material adverse change and no
development which, in the reasonable judgment of the signer of
such certificate, involves the substantial likelihood of a
prospective material adverse change in the condition of the
Company and its subsidiaries, taken as a whole, from that set
forth in the Registration Statement and the Prospectus.
VI.
In further consideration of the agreements of the Underwriters
contained in this Agreement, the Company covenants as follows:
(a) To deliver to the Manager two copies of the Registration
Statement as originally filed (including documents incorporated by
reference therein) and of all amendments thereto up to the time of
closing. Promptly upon the filing with the Commission of any amendment
to the Registration Statement or of any supplement to or amendment of
the Prospectus, the Company will deliver to the Manager two copies
thereof. The terms "supplement" and "amendment" or "amend", as used in
this Agreement, shall include all documents subsequently filed by the
Company pursuant to the Securities Exchange Act of 1934 (the "Exchange
Act") which are deemed to be incorporated by reference in the
Prospectus from the date of filing such documents in accordance with
Form S-3.
(b) If, during such period after the first date of the public
offering of the Offered Securities as in the reasonable opinion of
counsel for the Underwriters
the Prospectus is required by law to be delivered in connection with
sales by an Underwriter or dealer, any event shall occur or a condition
shall exist as a result of which it is necessary to amend or supplement
the Prospectus in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, or if it
is necessary to amend or supplement the Prospectus to comply with law,
at the request of the Manager, forthwith to prepare and furnish, at
their own expense, to the Underwriters and to the dealers (whose names
and addresses the Manager shall furnish to the Company) to which
Offered Securities may have been sold by the Manager on behalf of the
Underwriters and to any other dealer upon request, either amendments or
supplements to the Prospectus so that the statements in the Prospectus,
as so amended or supplemented will not, in the light of the
circumstances under which they were made, be misleading or so that the
Prospectus will comply with law. If after the expiration of such period
the Company is requested by the Manager to so do, it will prepare and
furnish to the Underwriters, at the expense of the Underwriters and
after a reasonable time for the preparation thereof, such quantity as
may reasonably be required for the purposes contemplated by the
Securities Act of an amended or supplemented prospectus (but not
further amendments or supplements thereto) complying at the time of
delivery with Section 10(a) of the Securities Act, for use in
connection with the distribution of the Offered Securities; provided
that if the Company has delivered such an amended or supplemented
prospectus pursuant to such request it shall not be under any
obligation to comply with any further such request.
(c) To use their best efforts to qualify the Offered
Securities for offer and sale under the applicable securities or Blue
Sky laws of such jurisdictions as the Manager shall reasonably request
and to pay all expenses (including fees and disbursements of counsel)
in connection with such qualification and in connection with the
determination of the eligibility of the Offered Securities for
investment under the applicable laws of such jurisdictions as the
Manager may designate; provided, however that the Company shall not be
obligated to file any general consent to service of process or to
qualify as a foreign corporation in any jurisdiction in which it is not
so qualified.
(d) To make generally available to the Company's security
holders as soon as practicable an earnings statement covering a
twelve-month period beginning after the date of the Underwriting
Agreement, which shall satisfy the provisions of Section 11(a) of the
Securities Act and the applicable rules and regulations thereunder.
(e) Not, without the prior consent of the Manager, to offer
or to sell any of the Securities covered by the Registration Statement
and having a maturity of more than one year between the commencement of
an offering of Offered Securities and the related Closing Date.
VII.
(a) The Company represents and warrants to each Underwriter that (i)
each document, if any, filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with such Act and the rules and regulations
thereunder, (ii) each part of the Registration
Statement (including the documents incorporated by reference therein), filed
with the Commission pursuant to the Securities Act relating to the Offered
Securities, when such part became effective, did not contain any untrue
statement of material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading,
(iii) each Preliminary Prospectus, if any, filed pursuant to Rule 424 under the
Securities Act complied when so filed in all material respects with such Act and
the applicable rules and regulations thereunder, (iv) the Registration Statement
and the Prospectus comply and, as amended or supplemented, if applicable, will
comply in all material respects with the Securities Act and the applicable rules
and regulations thereunder and (v) the Registration Statement and the Prospectus
at the date of the Prospectus Supplement do not contain and, as further amended
or supplemented, if applicable, as of their respective dates, will not contain
any untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading, except that the representations and warranties set forth in this
paragraph (a) do not apply to statements or omissions in the Registration
Statement, any Preliminary Prospectus or the Prospectus based upon information
furnished to the Company in writing by any Underwriter expressly for use
therein.
(b) The Company has complied with all applicable provisions of Section
1 of Laws of Florida, Chapter 92-198 relating to business transactions with
Cuba.
(c) The Company agrees to indemnify and hold each Underwriter, and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Securities Act of Section 20 of the Exchange Act, harmless from and against
any and all losses, claims, damages and liabilities arising because (i) any
Preliminary Prospectus, if used prior to the effectiveness of the Registration
Statement relating to the Offered Securities, and if used as amended by all
amendments thereto which have been furnished to the Manager or to such
Underwriter, or (ii) the Registration Statement (or the Prospectus if used
within the period set forth in paragraph (b) of Article VI hereof and if used as
amended or supplemented by all amendments or supplements thereto which have been
furnished to the Manager or to such Underwriter) contained or is alleged to have
contained any untrue statement of a material fact or omitted or is alleged to
have omitted to state a material fact required to be stated therein or necessary
to make the statements therein not misleading; provided, however that the
Company will not be liable in any such case to the extent that any such losses,
claims, damages or liabilities were caused by any such untrue statement or
omission or alleged untrue statement or alleged omission made in reliance upon
information furnished to the Company herein or otherwise in writing by or on
behalf of any Underwriter specifically for use in connection with the
preparation of any Preliminary Prospectus, the Registration Statement or the
Prospectus or any amendment or supplement thereto, or were caused by any
statement in or omission from the Statement of Eligibility and Qualification of
the Trustee under the Indenture, provided that the indemnity agreement with
respect to any Preliminary Prospectus shall not inure to the benefit of any
Underwriter (or to the benefit of any person controlling such Underwriter) on
account of any losses, claims, damages or liabilities to any person if a copy of
the Prospectus (as amended or supplemented by all amendments or supplements
thereto which have been furnished to the Manager or to such Underwriter, but
without documents incorporated by reference therein or exhibits) shall not have
been sent, mailed or given to such person, if required by the Securities Act, at
or prior to the written confirmation of the sale of such Securities to such
person, and the loss, claim, damage or liability of such Underwriter results
from an untrue statement or omission of a material fact contained in the
Preliminary Prospectus which was corrected in the
Prospectus (as amended or supplemented).
(d) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors or officers who sign the
Registration Statement and any person controlling the Company to the same extent
as the foregoing indemnity from the Company to the Underwriters but only in
reference to information relating to the Underwriters furnished or confirmed in
writing by such Underwriter expressly for use in connection with the preparation
of any Preliminary Prospectus, the Registration Statement, the Prospectus or any
amendment or supplement thereto.
(e) The Company and each Underwriter agree that upon the commencement
of any action against it, the Company's directors or officers who sign the
Registration Statement or any person controlling the Company or any Underwriter
as aforesaid in respect of which indemnity may be sought on account of any
indemnity agreement contained herein, it will promptly give written notice of
the commencement thereof to the party or parties against whom indemnity shall be
sought, but the omission so to notify such indemnifying party or parties of any
such action shall not relieve such indemnifying party or parties from any
liability which it or they may have to the indemnified party or parties
otherwise than on account of such indemnity agreement. In case such notice of
any such action shall be so given, such indemnifying party or parties shall be
entitled to participate at its or their own expense in the defense of such
action, or, if it or they so elect, to assume the defense of such action, and in
the latter event such defense shall be conducted by counsel chosen by such
indemnifying party or parties and satisfactory to the indemnified party or
parties who shall be defendant or defendants in such action, and such defendant
or defendants shall bear the fees and expense of any additional counsel retained
by them; but if the indemnifying party or parties shall not elect to assume the
defense of such action, such indemnifying party or parties will reimburse such
indemnified party or parties for the reasonable fees and expenses of any counsel
retained by them. In the event that the parties to any such action (including
impleaded parties) include 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 due to actual or potential
differing interests between them, then the indemnifying party or parties shall
not have the right to assume the defense of such action on behalf of such
indemnified party or parties and will reimburse such indemnified party or
parties for the reasonable fees and expenses of any counsel retained by them and
satisfactory to the indemnifying party or parties, it being understood that the
indemnifying party or parties shall not, in connection with any one action or
separate but similar or related actions in the same jurisdiction arising out of
the same general allegations or circumstances, be liable for the reasonable fees
and expenses of more than one separate firm of attorneys (in addition to local
counsel) for all such indemnified parties, which firm shall be designated in
writing by the Manager 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. It is also understood that the
fees and expenses referred to in the immediately preceding sentence shall be
reimbursed as they are incurred. 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 but if settled with such consent or if there
is a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from
and against any loss or liability by reason of such judgment or settlement. Any
indemnifying party shall, prior to agreeing to any settlement of any pending or
threatened proceeding in respect of which any indemnified party is or could have
been a party and indemnity could have been sought hereunder by such indemnified
party, make their best effort to obtain the unconditional release of such
indemnified party from all liability or claims rising out of the subject matter
of such proceeding.
(f) If the indemnification provided for in subparagraph (c) and (d) of
this Article VII is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities referred to therein, then each
indemnifying party under such paragraph, in lieu of indemnifying such
indemnified party thereunder, shall contribute to the amount paid or payable by
such indemnified party as a result of such losses, claims, damages or
liabilities in such proportion as is appropriate to reflect primarily the
relative benefits received by the Company on the one hand and the Underwriters
on the other from the offering of the Securities and also to reflect where
appropriate the relative fault of the Company on the one hand and of the
Underwriters on the other in connection with the statements or omissions or
alleged statements or omissions which resulted in such losses, claims, damages
or liabilities, as well as any other relevant equitable considerations. The
relative benefits received by the Company on the one hand and by the
Underwriters on the other in connection with the offering of the Securities
shall be deemed to be in the same proportion as the total gross proceeds from
the offering of such Securities (before deducting expenses) received by the
Company bear to the total commissions received by the Underwriters. The relative
fault of the Company and of the Underwriters shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company or by the Underwriters and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the Underwriters
agree that it would not be just and equitable if contribution pursuant to this
subparagraph (f) were determined by pro rata allocation (even if the
Underwriters were treated as one entity for such purpose) or by any other method
of allocation which does not take account of the equitable considerations
referred to above in this subparagraph (f). The amount paid or payable by an
indemnified party as a result of the losses, claims, damages or liabilities
referred to in this subparagraph (f) shall be deemed to include subject to the
limitations set forth above in this Article VII, any legal or other expenses
reasonably incurred by such indemnified party in connection with defending any
such action or claim. Notwithstanding the provisions of this subparagraph (f),
no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Securities underwritten by it and
distributed to the public were offered to the public exceeds the amount of any
damages which such Underwriter has been required to pay, otherwise than pursuant
to this Article VII, by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations to contribute pursuant to this
subparagraph (f) are several in proportion to the respective principal amounts
of Offered Securities purchased by each such Underwriter and not joint. The
remedies provided in this Article VII are not exclusive and shall not limit any
rights or remedies which may otherwise be available to any indemnified party at
law or in equity.
The indemnity and contribution agreements contained in this Article VII
and the
representations and warranties of the Company in this Agreement shall remain
operative and in full force and effect regardless of (i) any termination of this
Agreement, (ii) any investigation made by or on behalf of any Underwriter or on
behalf of any Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its directors or officers or any person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
VIII.
If any one or more Underwriters shall fail to purchase and pay for any
of the Offered Securities agreed to be purchased by such Underwriter or
Underwriters and such failure to purchase shall constitute a default in the
performance of its or their obligations under this Agreement, the remaining
Underwriters shall be obligated severally to take up and pay for (in the
respective proportions which the principal amount of Offered Securities set
forth opposite their names in the Underwriting Agreement bears to the aggregate
principal amount of Securities set forth opposite the names of all the remaining
Underwriters) the Offered Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase; provided, however, that in the event
that the aggregate principal amount of Offered Securities which the defaulting
Underwriter or Underwriters agreed but failed to purchase shall exceed 10% of
the aggregate principal amount of Securities set forth in the Underwriting
Agreement, the remaining Underwriters shall have the right to purchase all, but
shall not be under any obligation to purchase any, of the Offered Securities,
and if such nondefaulting Underwriters do not purchase all the Offered
Securities, this Agreement will terminate without liability to any nondefaulting
Underwriter or the Company. In the event of a default by any Underwriter as set
forth in this Article VIII, the Closing Date shall be postponed for such period,
not exceeding seven days, as the Manager shall determine in order that the
required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. Nothing contained in this
agreement shall relieve any defaulting Underwriter of its liability, if any, to
the Company and any nondefaulting Underwriter for damages occasioned by its
default hereunder.
IX.
This Agreement shall be subject to termination in the absolute
discretion of the Manager, by notice given to the Company, if prior to the
Closing Date (i) trading in securities generally on the New York Stock Exchange
shall have been suspended or materially limited, (ii) a general moratorium on
commercial banking activities in New York shall have been declared by either
Federal or New York State authorities or (iii) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or
other calamity or crisis the effect of which is to make it, in the judgment of
the Manager, impracticable to market the Offered Securities.
X.
If this Agreement shall be terminated by the Underwriters or any of
them, because of any failure or refusal on the part of the Company to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company shall be unable to perform their respective obligations
under this Agreement except pursuant to Article VIII hereof, the Company will
reimburse the Underwriters or such Underwriters as have so terminated this
Agreement with respect to themselves, severally, for all out-of-
pocket expenses (including the fees and disbursements of their counsel)
reasonably incurred by such Underwriters in connection with the Offered
Securities.
This Agreement may be signed in any number of counterparts, each of
which shall be an original, with the same effect as if the signature thereto and
hereto were upon the same instrument.
This Agreement shall be governed by and construed in accordance with
the laws of the State of New York.
SCHEDULE I
DELAYED DELIVERY CONTRACT
[NOTE: WOULD NEED TO BE DESCRIBED IN PROSPECTUS SUPPLEMENT]
Dear Sirs:
The undersigned hereby agrees to purchase from BellSouth Corporation, a
Georgia corporation (the "Company"), and the Company agrees to sell to the
undersigned, $ principal amount of the Company's [state title of issue]
(the "Securities"), offered by the Company's Prospectus dated and
Prospectus Supplement dated , , receipt of copies of which are hereby
acknowledged, at a purchase price of % of the principal amount thereof plus
accrued interest and on the further terms and conditions set forth in this
contract. The undersigned does not contemplate selling Securities prior to
making payment therefor.
The undersigned will purchase from the Company Securities in the
principal amounts and on the delivery dates set forth below:
DELIVERY PRINCIPAL PLUS ACCRUED
DATE AMOUNT INTEREST FROM:
$
$
$
Each such date on which Securities are to be purchased hereunder is hereinafter
referred to as a "Delivery Date."
Payment for the Securities which the undersigned has agreed to purchase
on each Delivery Date shall be made to the Company or its order by [certified or
official bank check in New York Clearing House funds] [immediately available
funds] at the offices of at 10:00 A.M. (New York time) on the Delivery Date,
upon delivery to the undersigned [through the facilities of The Depository Trust
Company] of the Securities to be purchased by the undersigned on the Delivery
Date, [in such denominations and registered in such names as the undersigned may
designate by written or telegraphic communication addressed to the Company not
less than five full business days prior to the Delivery Date].
The obligation of the undersigned to take delivery of and make payment
for the Securities on the Delivery Date shall be subject to the conditions that
(1) the purchase of Securities to be made by the undersigned shall not at the
time of delivery be prohibited under the laws of the jurisdiction to which the
undersigned is subject and (2) the Company shall have sold, and delivery shall
have taken place to the underwriters (the "Underwriters") named in the
Prospectus Supplement referred to above of, such part of the Securities as is to
be sold to them. Promptly after completion of sale and delivery to the
Underwriters, the Company will mail or deliver to the undersigned at its address
set forth below notice to such effect, accompanied by a copy of the opinion of
counsel for the Company delivered to the Underwriters in connection therewith.
Failure to take delivery of and make payment for Securities by any
purchaser under any other Delayed Delivery Contract shall not relieve the
undersigned of its
obligations under this contract.
This contract will inure to the benefit of and be binding upon the
parties thereto and their respective successors, but will not be assignable by
either party hereto without the prior written consent of the other.
If this contract is acceptable to the 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, as of the date first above written, between the
Company and the undersigned when such counterpart is so mailed or delivered.
This contract shall be governed by and construed in accordance with the
laws of the State of New York.
Yours very truly,
------------------------------------
(Purchaser)
By:
------------------------------------
------------------------------------
(Title)
------------------------------------
------------------------------------
(Address)
Accepted:
BELLSOUTH CORPORATION
By:
PURCHASER -- PLEASE COMPLETE AT TIME OF SIGNING
The name and telephone and department of the representative of the
Purchaser with whom details of delivery on the Delivery Date may be discussed is
as follows: (Please print).
TELEPHONE NO.
NAME (INCLUDING AREA CODE) DEPARTMENT:
EXHIBIT A
The opinion of counsel to the Company to be delivered pursuant to
Article V, paragraph (b) of the document dated August 17, 2004 and entitled
BellSouth Corporation Underwriting Agreement Standard Provisions (Debt) shall be
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 Georgia;
(ii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company;
(iii) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable against it in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws of general application, and except
that the enforceability of the obligations of the Company is subject to
general principles of equity (regardless of whether such enforceability
is considered in a proceeding of equity or at law); the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended;
(iv) the Offered Securities have been duly authorized and,
when executed by the Company and authenticated by the Trustee in
accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters in accordance with the terms of the
Underwriting Agreement or by the institutional investors, if any,
pursuant to Delayed Delivery Contracts, will be valid and binding
obligations of the Company enforceable against it in accordance with
their terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws of general
application, and except that the enforceability of the obligations of
the Company is subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding of equity or
at law); the Offered Securities will be entitled to the benefits of the
Indenture;
(v) the performance of this Agreement will not contravene any
provision of applicable federal law or the law of the State of Georgia
or the articles of incorporation or by-laws of the Company or, to the
knowledge of such counsel, any agreement or other instrument binding
upon the Company, and no consent, approval or authorization of any
governmental body is required for the performance of this Agreement,
except that the offer and sale of the Offered Securities in certain
jurisdictions may be subject to the Blue Sky or securities laws of such
jurisdictions;
(vi) the statements in the Prospectus under the captions
"Description of Securities", "Description of [Offered Securities]",
"Plan of Distribution" and "Underwriting", and the statements in the
Company's Annual Report on Form 10-K under "Item 3 -- Legal
Proceedings", insofar as such statements constitute summaries of the
documents and matters referred to therein, fairly present the
information called for with respect to such documents and matters;
(vii) (1) each document filed pursuant to the Exchange Act
(except as to
financial statements or schedules included therein, and except as to
the accuracy or validity of other numerical data included in the
Registration Statement and the Prospectus, as to which such counsel
need not express any conclusion) and incorporated by reference in the
Prospectus complied when so filed as to form in all material respects
with the Exchange Act and all applicable rules and regulations
thereunder, and (2) the Registration Statement and the Prospectus
(except as to financial statements or schedules included therein, and
except as to the accuracy or validity of other numerical data included
in the Registration Statement and the Prospectus, as to which such
counsel need not express any conclusion) comply as to form in all
material respects with the Securities Act and the applicable rules and
regulations thereunder, and
(viii) nothing has come to the attention of such counsel to
cause him or her to believe that (l) (except as to financial statements
or schedules included therein, and except as to the accuracy or
validity of other numerical data included in the Registration Statement
and the Prospectus, as to which such counsel need not express any
conclusion) each part of the Registration Statement (including the
documents incorporated by reference therein) filed with the Commission
pursuant to the Securities Act, when such part became effective,
contained any untrue statement of a material fact or omitted to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading; or (2) (except as to financial
statements or schedules included therein, and except as to the accuracy
or validity of other numerical data included in the Registration
Statement and the Prospectus, as to which such counsel need not express
any conclusion) the Registration Statement and the Prospectus, as of
the date of this opinion, contain any untrue statement of a material
fact or omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they
were made, not misleading.
With respect to the matters set forth in (viii) above, such counsel may
state that the opinion is based upon his participation in the preparation of the
Registration Statement and the Prospectus and upon review and discussion of the
contents thereof, but, except for the statements in the Prospectus referred to
in (vi) above and in "Item 3 -- Legal Proceedings" of BellSouth's latest Annual
Report on Form 10-K incorporated by reference into the Prospectus, is without
independent check or verification except as specified. Insofar as the above
opinions relate to matters governed by the laws of the State of New York, the
opinion of said counsel may rely on opinion of counsel satisfactory to such
counsel.
EXHIBIT B
The opinion of ▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇, counsel for the Underwriters, to
be delivered pursuant to Article V, paragraph (c) of the document dated August
17, 2004 and entitled BellSouth Corporation Underwriting Agreement Standard
Provisions (Debt) shall be to the effect that:
(i) the Indenture has been duly authorized, executed and
delivered by the Company and is a valid and binding agreement of the
Company enforceable against it in accordance with its terms, except as
the enforceability thereof may be limited by bankruptcy, insolvency,
reorganization or other similar laws of general application, and except
that the enforceability of the obligations of the Company is subject to
general principles of equity (regardless of whether such enforceability
is considered in a proceeding of equity or at law); the Indenture has
been duly qualified under the Trust Indenture Act of 1939, as amended;
(ii) the Offered Securities have been duly authorized and,
when executed by the Company and authenticated by the Trustee in
accordance with the provisions of the Indenture and delivered to and
paid for by the Underwriters in accordance with the terms of the
Underwriting Agreement or by the institutional investors, if any,
pursuant to Delayed Delivery Contracts, will be valid and binding
obligations of the Company enforceable against it in accordance with
their terms, except as the enforceability thereof may be limited by
bankruptcy, insolvency, reorganization or other similar laws of general
application, and except that the enforceability of the obligations of
the Company is subject to general principles of equity (regardless of
whether such enforceability is considered in a proceeding of equity or
at law); the Offered Securities will be entitled to the benefits of the
Indenture;
(iii) the Underwriting Agreement has been duly authorized,
executed and delivered by the Company and is a valid and binding
agreement of the Company except as rights to indemnity and contribution
thereunder may be limited under applicable law;
(iv) the statements in the Prospectus under the captions
"Description of Securities", "Description of [Offered Securities]",
"Plan of Distribution" and "Underwriting", insofar as such statements
constitute summaries of the documents referred to therein, fairly
present the information called for with respect to such documents;
(v) the Registration Statement and the Prospectus, (except as
to financial statements or schedules included therein, and except as to
the accuracy or validity of other numerical data included in the
Registration Statement and the Prospectus, as to which such counsel
need not express any conclusion) comply as to form in all material
respects with the Securities Act and the applicable rules and
regulations thereunder; and
(vi) nothing has come to the attention of such counsel to
cause such counsel to believe that (1) (except as to financial
statements or schedules
included therein, and except as to the accuracy or validity or other
numerical data included in the Registration Statement and the
Prospectus, as to which such counsel need not express any conclusion)
any part of the Registration Statement (including the documents
incorporated by reference therein) filed with the Commission pursuant
to the Securities Act, when such part became effective, contained any
untrue statement of a material fact or omitted to state a material fact
required to be stated therein or necessary to make the statements
therein not misleading; or (2) (except as to financial statements or
schedules included therein, and except as to the accuracy or validity
of other numerical data included in the Registration Statement and the
Prospectus, as to which such counsel need not express any conclusion)
the Registration Statement and the Prospectus, as of the date of this
opinion, contain any untrue statement of a material fact or omit to
state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made,
not misleading.
With respect to the matters set forth in (v) and (vi) above, such
counsel may state that the opinion is based upon such counsel's participation in
the preparation of the Registration Statement and the Prospectus and upon review
and discussion of the contents thereof, but, except for the statements in the
Prospectus referred to in (iv) above, is without independent check or
verification except as specified.
Insofar as the above opinions relate to matters governed by the laws of the
State of Georgia, the opinion of said counsel may rely on opinion of counsel
satisfactory to such counsel.
