Exhibit 1-c
SBC COMMUNICATIONS INC.
COMMON STOCK
FORM OF UNDERWRITING AGREEMENT
(date)
To the Representative(s)
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
SBC Communications Inc., a Delaware corporation (the "Company"), may
issue and sell from time to time shares of its common stock, par value $1 per
share (the "Common Stock") registered under the registration statement referred
to in Paragraph 1(a) hereof (the "Securities", and individually a "Security").
The Company proposes to sell to the underwriters named in Schedule II hereto
(the "Underwriters") for whom you are acting as representative(s) (the
"Representative"), a series of Securities with the terms and in the aggregate
principal amount specified in Schedule I hereto (the "Underwritten Securities"
and, individually, an "Underwritten Security").
1. Representations and Warranties of the Company. The Company
represents and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-3 with respect to the Securities
has been prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the rules
and regulations (the "Rules and Regulations") of the Securities and
Exchange Commission (the "Commission") thereunder and has become effective.
As used in this Agreement, (i) "Registration Statement" means that
registration statement, as amended or supplemented to the date hereof
(including all documents incorporated therein by reference); (ii)
"Preliminary Prospectus" means each prospectus (including all documents
incorporated therein by reference) included in that Registration Statement,
or amendments thereto or supplements thereof, before it became effective
under the Securities Act, including any prospectus filed with the
Commission pursuant to Rule 424(a) of the Rules and Regulations; (iii)
"Basic Prospectus" means the prospectus (including all documents
incorporated therein by reference) included in the Registration Statement;
and (iv) "Prospectus" means the Basic Prospectus, together with any
prospectus amendment or supplement (including in each case all documents
incorporated therein by reference)
specifically relating to the Underwritten Securities, as filed with, or
mailed for filing to, the Commission pursuant to paragraph (b) or (c) of
Rule 424 of the Rules and Regulations. The Commission has not issued any
order preventing or suspending the use of the Prospectus.
(b) The Registration Statement and each Prospectus contain, and (in the
case of any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will contain
at all times during the period specified in Paragraph 3(c) hereof, all
statements which are required by the Securities Act, the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), and the rules and
regulations of the Commission under such Acts; and the Registration
Statement and the Prospectus do not, and (in the case of any amendment or
supplement to any such document, or any material incorporated by reference
in any such document, filed with the Commission after the date as of which
this representation is being made) will not at any time during the period
specified in Paragraph 3(c) hereof, contain any untrue statement of a
material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company through the Representative by or on behalf of any
Underwriter specifically for use therein.
(c) The Company is not in violation of its corporate charter or bylaws
or in default under any agreement, indenture or instrument, the effect of
which violation or default would be material to the Company; the execution,
delivery and performance of this Agreement and compliance by the Company
with the provisions of the Underwritten Securities will not conflict with,
result in the creation or imposition of any lien, charge or encumbrance
upon any of the assets of the Company or any of its material subsidiaries
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument, or result in a violation of the corporate charter
or bylaws of the Company or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company; and except as
required by the Securities Act and applicable state securities laws, no
consent, authorization or order of, or filing or registration with, any
court or governmental agency is required for the execution, delivery and
performance of this Agreement.
(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, there shall have not occurred any changes or
any development involving a prospective change, or affecting particularly
the business or properties of the Company or its subsidiaries which
materially impairs the investment quality of the Underwritten Securities
since the dates as of which information is given in the Registration
Statement and the Prospectus.
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(e) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation with full corporate power and
authority to own its properties and conduct its business as described in
the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification wherein it owns or leases properties or
conducts business, except where the failure to so qualify would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole.
(f) The Underwritten Securities and all other outstanding shares of
capital stock of the Company have been duly authorized; all outstanding
shares of capital stock of the Company are, and, when the Underwritten
Securities have been delivered and paid for in accordance with this
Agreement on the Closing Date (as defined below), such Underwritten
Securities will have been, validly issued, fully paid and nonassessable and
will constitute legally binding obligations of the Company; and the
Underwritten Securities will conform to the description thereof contained
in the Prospectus; and the stockholders of the Company have no preemptive
rights with respect to the Underwritten Securities.
( ) [If the Underwritten Securities are convertible into Preferred
Stock: When the Underwritten Securities are delivered and paid for pursuant
to this Agreement on the Closing Date (as defined below), such Underwritten
Securities will be convertible into Preferred Stock of the Company in
accordance with their terms; the shares of Preferred Stock initially
issuable upon conversion of such Underwritten Securities have been duly
authorized and reserved for issuance upon such conversion and, when issued
upon such conversion, will be validly issued, fully paid and nonassessable;
the outstanding shares of Preferred Stock have been duly authorized and
validly issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and the stockholders of
the Company have no preemptive rights with respect to the Preferred Stock.]
( ) [If the Underwritten Securities are convertible into debt
securities of the Company: When the Underwritten Securities are delivered
and paid for pursuant to this Agreement on the Closing Date (as defined
below), such Underwritten Securities will be convertible into debt
securities of the Company in accordance with their terms; the Indenture
under which the debt securities will be issued will have been duly
authorized and duly qualified under the Trust Indenture Act; the debt
securities initially issuable upon conversion of such Underwritten
Securities have been duly authorized; and, when the Underwritten Securities
have been delivered upon such conversion, the Indenture will have been duly
executed and delivered and will conform to the description thereof in the
Prospectus; such debt securities will have been duly executed
authenticated, issued and delivered and will conform to the description
thereof contained in the Prospectus and the Indenture, and such debt
securities, when issued upon such conversion, will constitute valid and
legally
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binding obligations of the Company, enforceable in accordance with their
terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.]
(g) Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that would
give rise to a valid claim against the Company or any Underwriter for a
brokerage commission, finder's fee or other like payment in connection with
the offering of the Underwritten Securities.
[() There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration statement
filed by the Company under the Securities Act.]
(h) The Underwritten Securities have been approved for listing on the
New York Stock Exchange, Chicago Stock Exchange and the Pacific Stock
Exchange, subject to notice of issuance.
(i) This Agreement has been duly authorized, executed and delivered
by the Company.
(j) Except as described in the Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries which is
reasonably expected to result in any material adverse change in the
financial condition, results of operations, business or prospects of the
Company and its subsidiaries taken as a whole or which is required to be
disclosed in the Registration Statement.
(k) The financial statements filed as part of the Registration
Statement or included in any Preliminary Prospectus or the Prospectus
present, or (in the case of any amendment or supplement to any such
document, or any material incorporated by reference in any such document,
filed with the Commission after the date as of which this representation is
being made) will present at all times during the period specified in
Paragraph 3(c) hereof, fairly, the consolidated financial condition and
results of operations of the Company and its subsidiaries, at the dates and
for the periods indicated, and have been, and (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date as
of which this representation is being made) will be at all times during the
period specified in Paragraph 3(c) hereof, prepared in
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conformity with generally accepted accounting principles applied on a
consistent basis throughout the periods involved (except as described in
the notes thereto).
(l) The documents incorporated by reference into any Preliminary
Prospectus or the Prospectus have been, and (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date as
of which this representation is being made) will be, at all times during
the period specified in Paragraph 3(c) hereof, prepared by the Company in
conformity with the applicable requirements of the Securities Act and the
Rules and Regulations and the Exchange Act and the rules and regulations of
the Commission thereunder and such documents have been, or (in the case of
any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will be at
all times during the period specified in Paragraph 3(c) hereof, timely
filed as required thereby.
(m) There are no contracts or other documents which are required to be
filed as exhibits to the Registration Statement by the Securities Act or by
the Rules and Regulations, or which were required to be filed as exhibits
to any document incorporated by reference in the Prospectus by the Exchange
Act or the rules and regulations of the Commission thereunder, which have
not been filed as exhibits to the Registration Statement or to such
document or incorporated therein by reference as permitted by the Rules and
Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
2. Purchase and Offering of Underwritten Securities. Subject to the
terms and conditions and in reliance upon the representations and warranties
herein set forth, the Company agrees to sell to each Underwriter, severally and
not jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price and subject to the other terms set forth
in this Agreement and Schedule I hereto, the principal amount of the
Underwritten Securities set forth opposite its name in Schedule II hereto.
Schedule I hereto will also specify the time and date of delivery and payment
(such time and date, or such other time not later than seven full business days
thereafter as the Representative and the Company agree as the time for payment
and delivery, being herein and in Schedule I hereto referred to as the "Closing
Date"), the place of delivery and payment and any details of the terms of
offering that should be reflected in the prospectus supplement relating to the
offering of the Underwritten Securities. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Underwritten Securities sold pursuant to the offering.
It is understood that the Underwriters propose to offer the Securities for sale
as set forth in the Prospectus.
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The certificates for the Underwritten Securities delivered to the
Underwriters on the Closing Date will be in definitive form, in such
denominations and registered in such names as the Representative requests.
The Company shall not be obligated to deliver any Underwritten Securities
except upon payment for all Underwritten Securities to be purchased pursuant to
this Agreement as hereinafter provided.
3. Certain Agreements of the Company. The Company agrees with the
several Underwriters that:
(a) The Company will furnish promptly to the Representative and to
counsel for the Underwriters, signed copies of the Registration Statement
as originally filed, including all exhibits and each amendment and
supplement thereto filed prior to the date hereof and relating to or
covering the Underwritten Securities, and a copy of the Prospectus filed
with the Commission, including all documents incorporated therein by
reference and all consents and exhibits filed therewith.
(b) The Company will deliver promptly to the Representative such
reasonable number of the following documents as the Representative may
request: (i) conformed copies of the Registration Statement (excluding
exhibits other than the computation of the ratio of earnings to fixed
charges and this Agreement), (ii) the Prospectus and (iii) any documents
incorporated by reference in the Prospectus.
(c) During any period when a Prospectus relating to the Underwritten
Securities is required by law to be delivered, the Company will not file
any amendment of the Registration Statement nor will the Company file any
amendment or supplement to the Prospectus (except for (i) an amendment or
supplement consisting solely of the filing of a document under the Exchange
Act or (ii) a supplement relating to an offering of securities other than
the Underwritten Securities), unless the Company has furnished the
Representative a copy of such proposed amendment or supplement for its
review prior to filing and will not file any such proposed amendment or
supplement to which the Representative reasonably objects. Subject to the
foregoing sentence, the Company will cause the Prospectus and any amendment
or supplement thereto to be filed with the Commission as required pursuant
to Rule 424 under the Securities Act. The Company will promptly advise the
Representative (i) when the Prospectus or any amendment or supplement
thereto shall have been filed with the Commission pursuant to Rule 424
under the Securities Act, (ii) when any amendment of the Registration
Statement shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of
or supplement to the Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of
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the qualification of the Underwritten Securities for sale in any
jurisdiction or the initiation or threatening of any proceeding for such
purpose. The Company will promptly (upon filing thereof) furnish the
Representative a copy of any amendment or supplement to the Prospectus or
Registration Statement not furnished to the Representative for prior review
pursuant to exceptions (i) or (ii) of the first sentence of this subsection
(c). The Company will use its best efforts to prevent the issuance of any
such stop order and, if issued, to obtain as soon as possible the
withdrawal thereof.
(d) If, at any time when a prospectus relating to the Underwritten
Securities is required to be delivered under the Securities Act in
connection with sales by any Underwriter or dealer, any event occurs as a
result of which the Registration Statement, as then amended, or the
Prospectus as then supplemented, would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend the
Registration Statement or to supplement the Prospectus to comply with the
Securities Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify the Representative of the happening of
such event, (ii) prepare and file with the Commission, subject to the first
sentence of Paragraph 3(c), an amendment or supplement which will correct
such statement or omission or an amendment or supplement which will effect
such compliance and (iii) will supply any such amended or supplemented
prospectus to the Representative in such quantities as the Representative
may reasonably request.
(e) As soon as practicable, the Company will make generally available
to its security holders and to the Representative an earnings statement or
statements of the Company, which will satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 under the Securities Act.
(f) During a period of five years after the date hereof, the Company
will furnish to the Representative copies of all reports and financial
statements furnished by the Company to each securities exchange on which
securities issued by the Company may be listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder to the
extent that such documents are not available on the Commission's website.
(g) The Company will endeavor to qualify the Underwritten Securities
for sale under the laws of such jurisdictions as the Representative may
designate and will maintain such qualifications in effect so long as
required for the distribution of the Underwritten Securities, provided that
in connection therewith the Company shall not be required to qualify as a
foreign corporation or take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
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(h) The Company will pay the costs incident to the performance of its
obligations under this Agreement and will reimburse the Underwriters (if
and to the extent incurred by them) for the costs incident to the
authorization, issuance and delivery of the Underwritten Securities and any
taxes payable in that connection; the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement
and any amendments, supplements and exhibits thereto; the costs of
distributing the Registration Statement as originally filed and each
amendment and post-effective amendment thereof (including exhibits), any
Preliminary Prospectus, the Prospectus and any documents incorporated by
reference in any of the foregoing documents; the costs of producing this
Agreement; fees paid to rating agencies in connection with the rating of
the Underwritten Securities; the fees and expenses of qualifying the
Underwritten Securities under the securities laws of the several
jurisdictions as provided in this Paragraph and of preparing and printing a
Blue Sky Memorandum (including fees of counsel to the Underwriters); and
all other costs and expenses incident to the performance of the Company's
obligations under this Agreement; provided that, except as provided in this
Paragraph and in Paragraph 7 hereof, the Underwriters shall pay their own
costs and expenses, including the fees and expenses of their counsel, any
transfer taxes on the Underwritten Securities which they may sell and the
expenses of advertising any offering of the Underwritten Securities made by
the Underwriters.
(i) Until the termination of the offering of the Underwritten
Securities, the Company will timely file all documents, and any amendments
to previously filed documents, required to be filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act.
[If the Underwritten Securities are convertible into Preferred
Stock: The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Securities Act relating to, any additional
shares of its Preferred Stock or securities convertible into or
exchangeable or exercisable for any shares of its Preferred Stock, or
publicly disclose the intention to make any such offer, sale, pledge,
disposition or filing, without the prior written consent of the
Representative for a period beginning at the time of execution of this
Agreement and ending the number of days after the Closing Date specified
under "Blackout" in Schedule I hereto[, except issuances of Preferred Stock
pursuant to the conversion or exchange of convertible or exchangeable
securities or the exercise of warrants or options, in each case outstanding
on the date of this Agreement].]
4. Conditions of the Obligations of the Underwriters. The respective
obligations of the several Underwriters under this Agreement with respect to the
Underwritten Securities are subject to the accuracy, on the date of this
Agreement and on the Closing Date, of the representations and warranties of the
Company contained herein, to
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performance by the Company of its obligations hereunder, and to each of the
following additional terms and conditions applicable to the Underwritten
Securities:
(a) At or before the Closing Date, no stop order suspending the
effectiveness of the Registration Statement nor any order directed to any
document incorporated by reference in the Prospectus shall have been issued
and prior to that time no stop order proceeding shall have been initiated
or threatened by the Commission and no challenge shall have been made by
the Commission or its staff as to the accuracy or adequacy of any document
incorporated by reference in the Prospectus; any request of the Commission
for inclusion of additional information in the Registration Statement or
the Prospectus or otherwise shall have been complied with; and after the
date hereof the Company shall not have filed with the Commission any
amendment or supplement to the Registration Statement or the Prospectus (or
any document incorporated by reference therein) that shall have been
disapproved by the Representative.
(b) No Underwriter shall have discovered and disclosed to the Company
on or prior to the Closing Date that the Registration Statement or the
Prospectus contains an untrue statement of a fact which is material or
omits to state a fact which is material and is required to be stated
therein or is necessary to make the statements therein not misleading.
(c) All corporate proceedings and other legal matters incident to the
authorization, form and validity of this Agreement, the Underwritten
Securities and the form of the Registration Statement, the Prospectus
(other than financial statements and other financial data) and all other
legal matters relating to this Agreement, and the transactions contemplated
hereby and thereby shall be satisfactory in all respects to Xxxxxxxx &
Xxxxxxxx, counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) The Senior Executive Vice President and General Counsel to the
Company shall have furnished to the Representative his opinion addressed to
the Underwriters and dated the Closing Date, as counsel, to the effect
that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware; each material subsidiary of the
Company has been duly incorporated and is validly existing as
a corporation in good standing under the laws of the
jurisdiction of its incorporation; and each of the Company
and its material subsidiaries has full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
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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 Underwritten Securities and all other outstanding shares
of capital stock of the Company have been duly authorized and
validly issued, are fully paid and nonassessable and conform
to the description thereof contained in the Prospectus; and
the stockholders of the Company have no preemptive rights
with respect to the Underwritten Securities;
(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
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and the
statements included or incorporated by reference in the
Prospectus describing any legal proceedings or material
contracts or agreements relating to the Company or any of its
subsidiaries fairly summarize such matters; the Underwritten
Securities conform to the descriptions thereof contained
under the following (or comparable) captions of the
Prospectus: "Description of Securities" and "Plan of
Distribution";
( ) [If the Underwritten Securities are convertible into
Preferred Stock: the Underwritten Securities are convertible
into Preferred Stock of the Company in accordance with its
terms, and the shares of Preferred Stock initially issuable
upon conversion of the Underwritten Securities have been duly
authorized and reserved for issuance upon such conversion
and, when issued upon such conversion, will be validly
issued, fully paid and nonassessable; the outstanding shares
of Preferred Stock have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the
description thereof contained in the Prospectus; and the
stockholders of the Company have no preemptive rights with
respect to the Preferred Stock;]
( ) [If the Underwritten Securities are convertible into debt
securities of the Company: The Underwritten Securities are
convertible into debt securities of the Company in accordance
with their terms; the Indenture under which the debt
securities will be issued has been duly authorized and duly
qualified under the Trust Indenture Act; the debt securities
initially issuable upon conversion of such Underwritten
Securities have been duly authorized; the Indenture has been
duly executed and
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delivered and conforms to the description thereof in the
Prospectus; and the debt securities conform to the
description thereof contained in the Prospectus and, when
duly executed, authenticated, issued and delivered upon such
conversion, will constitute valid and legally binding
obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of
general applicability relating to or affecting creditors'
rights and to general equity principles;]
(iv) the Registration Statement and any amendments thereto have
become effective under the Securities Act; to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or
threatened, and the Registration Statement, the Prospectus
and each amendment thereof or supplement thereto as of their
respective effective or issue dates (other than the financial
statements and other financial and statistical information
contained therein as to which such counsel need express no
opinion) complied as to form in all material respects with
the applicable requirements of the Securities Act, the
Exchange Act and the respective rules and regulations
thereunder; and such counsel has no reason to believe that
the Registration Statement, or any amendment thereof, at the
time it became effective or at the date of this Agreement or
at the Closing Date, contained any untrue statement of a
material fact or omitted to state any material fact required
to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus, at the date of
this Agreement or at the Closing Date, included any untrue
statement of a material fact or omitted to state a material
fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not
misleading;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) no order, consent, approval, authorization, registration or
qualification of or with any governmental agency or body
having jurisdiction over the Company or any of its properties
is required for the issue and sale of the Underwritten
Securities or the consummation by the Company of the
transactions contemplated by this Agreement, except such as
have been obtained under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the sale and distribution of
the Underwritten Securities; and
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(vii) neither the execution and delivery of this Agreement, the
issue and sale of the Underwritten Securities, nor the
consummation of any other of the transactions herein or
therein contemplated nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach of, or
constitute a default under, the charter or by-laws of the
Company or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company or
any of its material subsidiaries is a party or by which the
Company, any such subsidiary or any of their assets is bound,
or any order or regulation known to such counsel to be
applicable to the Company or any such subsidiary of any
court, regulatory body, administrative agency, governmental
body or arbitrator having jurisdiction over the Company or
any such subsidiary.
In rendering such opinion, such counsel may rely (A) as to matters
involving the application of laws of any jurisdiction other than the State
of Delaware, upon the opinion of other counsel of good standing believed to
be reliable, provided that such counsel states in such opinion that such
counsel and the Representative are justified in relying upon the opinion of
such other counsel, and (B) as to matters of fact, to the extent deemed
proper, on certificates of responsible officers of the Company and public
officials.
In rendering such opinion with respect to clause (vi) above, insofar as it
relates to regulatory authorities in the states in which the Company or any
material subsidiary operates, such counsel may rely on the opinions of
local counsel satisfactory to such counsel.
(e) The Representative shall have received from Xxxxxxxx & Xxxxxxxx,
counsel for the Underwriters, such opinion or opinions, dated the date
hereof, with respect to the issuance and sale of the Underwritten
Securities, the Registration Statement, the Prospectus and other related
matters as the Representative may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representative a
certificate signed by its Chairman of the Board or its President or a
Senior Vice President and its Treasurer or an Assistant Treasurer stating
that after reasonable investigation and to the best of their knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made on
the Closing Date; the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied as a condition to the obligation of
the Underwriters to purchase the Underwritten Securities
hereunder;
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and the conditions set forth in subsections (a) and (b) of
this Paragraph 4 have been fulfilled;
(ii) as of the date of the Prospectus, the Registration Statement
and the Prospectus did not include any untrue statement of a
material fact and did not omit to state a material fact
required to be stated therein or necessary to make the
statements therein not misleading; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus,
there has been no material adverse change in the condition
(financial or other), earnings, business or properties of the
Company or its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus.
(g) The Company shall have furnished to the Representative (i) a
letter of the Company's independent auditors, addressed to the Board of
Directors of the Company and the Underwriters and dated the later of the
effective date of the Registration Statement or the date of the filing of
the Company's latest Annual Report on Form 10-K, of the type described in
the American Institute of Certified Public Accountants' Statement on
Auditing Standards No. 49 and covering such financial statement items as
counsel for the Underwriters may reasonably have requested and (ii) a
letter of the Company's independent auditors, addressed to the Underwriters
and dated the Closing Date, stating, as of the date of such letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the Prospectus, as of a date not more than five days prior to the date of
such letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by its letter referred to
in subclause (i) above and confirming in all material respects the
conclusions and findings set forth in such prior letter.
(h) No order, consent, approval, authorization, registration or
qualification of or with any governmental agency or body having
jurisdiction over the Company or any of its properties is required for the
issue and sale of the Underwritten Securities or the consummation by the
Company of the transactions contemplated by this Agreement, except such as
have been, or will have been prior to the Closing Date, obtained under the
Securities Act and such consents, approvals, authorizations, registrations
or quali fications 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.
13
5. Indemnification and Contribution. (a) The Company shall indemnify
and hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Securities Act from and against any loss,
claim, damage or liability, joint or several, and any action in respect thereof,
to which that Underwriter or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or arises out of, or is based upon,
the omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, and
shall reimburse each Underwriter and such controlling person for any legal and
other expenses reasonably incurred by that Underwriter or controlling person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action as such expenses are incurred (but no more
frequently than annually); provided, however, that the Company shall not be
liable in any such case to the extent that any such loss, claim, damage,
liability or action arises out of, or is based upon, any untrue statement or
alleged untrue statement or omission or alleged omission made in any Preliminary
Prospectus, the Registration Statement or the Prospectus in reliance upon and in
conformity with written information furnished to the Company through the
Representative by or on behalf of any Underwriter specifically for use therein.
The foregoing indemnity agreement is in addition to any liability which the
Company may otherwise have to any Underwriter or controlling person.
(b) Each Underwriter shall indemnify and hold harmless the Company,
each of their directors, each of their officers who signed the Registration
Statement and any person who controls the Company within the meaning of the
Securities Act from and against any loss, claim, damage or liability, joint
or several, and any action in respect thereof, to which the Company, or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or arises out of,
or is based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information
furnished in writing to the Company through the Representative by or on
behalf of that Underwriter specifically for use therein, and shall
reimburse the Company for any legal and other expenses reasonably incurred
by the Company or any such director, officer or controlling person in
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred (but no
more frequently than annually). The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or any of its directors, officers or controlling persons.
14
(c) Promptly after receipt by an indemnified party under this Paragraph
5 of notice of any claim or the commencement of any action, the indemnified
party shall, if a claim in respect thereof is to be made against the
indemnifying party under this Paragraph 5, notify the indemnifying party in
writing of the claim or the commencement of that action, provided that the
failure to notify the indemnifying party shall not relieve it from any
liability which it may have to an indemnified party otherwise than under
Paragraph 5(a) or 5(b). If any such claim or action shall be brought
against an indemnified party, and it shall notify the indemnifying party
thereof, the indemnifying party shall be entitled to participate therein,
and, to the extent that it wishes, jointly with any other similarly
notified indemnifying party, to assume the defense thereof with counsel
satisfactory to the indemnified party. After notice from the indemnifying
party to the indemnified party of its election to assume the defense of
such claim or action, the indemnifying party shall not be liable to the
indemnified party under this Paragraph 5 for any legal or other expenses
subsequently incurred by the indemnified party in connection with the
defense thereof other than reasonable costs of investigation. If the
indemnifying party shall not elect to assume the defense of such action,
such indemnifying party will reimburse such indemnified party for the
reasonable fees and expenses of any counsel retained by them. In the event
that the parties to any such action (including impleaded parties) include
both the Company and one or more Underwriters and either (i) the
indemnifying party or parties and indemnified party or parties mutually
agree or (ii) representation of both the indemnifying party or parties and
the indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct or in the opinion of such
counsel due to actual or potential differing interests between them, then
the indemnifying party shall not have the right to assume the defense of
such action on behalf of such indemnified party and will reimburse such
indemnified party for the reasonable fees and expenses of any counsel
retained by them and satisfactory to the indemnifying party, it being
understood that the indemnifying party shall not, in connection with any
one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate
firm of attorneys for all such indemnified parties, which firm shall be
designated in writing by the Representative in the case of an action in
which one or more Underwriters or controlling persons are indemnified
parties and by the Company in the case of an action in which the Company or
any of its directors, officers or controlling persons are indemnified
parties. The indemnifying party or parties shall not be liable under this
Agreement with respect to any settlement made by any indemnified party or
parties without prior written consent by the indemnifying party or parties
to such settlement.
(d) If the indemnification provided for in this Paragraph 5 shall for
any reason be unavailable to an indemnified party under Paragraph 5(a) or
5(b) hereof in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to therein, then each indemnifying
party shall, in lieu of indemnifying such indemnified
15
party, contribute to the amount paid or payable by such indemnified party
as a result of such loss, claim, damage or liability, or action in respect
thereof, in such proportion as is appropriate to reflect the relative
benefits received by the Company, on the one hand, and the Underwriters, on
the other hand, from the offering of the Underwritten Securities. If,
however, this allocation is not permitted by applicable law, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as shall be appropriate to
reflect the relative benefits received by the Company, on the one hand, and
the Underwriters, on the other hand, from the offering of the Underwritten
Securities and the relative fault of the Company, on the one hand, and the
Underwriters, on the other hand, with respect to the statements or
omissions which resulted in such loss, claim, damage or liability, or
action in respect thereof, as well as any other relevant equitable
considerations. The relative benefits received by the Company, on the one
hand, and the Underwriters, on the other hand, with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Underwritten Securities (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters with respect to such offering.
The relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by an indemnified party
as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Paragraph 5(d) shall be deemed to
include, for purposes of this Paragraph 5(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Paragraph 5(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Underwritten Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contrib ute as provided in this Paragraph 5(d)
are several in proportion to their respective underwriting obligations and
not joint.
(e) The agreements contained in this Paragraph 5 and the
representations, warranties and agreements of the Company in Paragraph 1
and Paragraph 3 hereof 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.
16
6. Termination of Obligations. The obligations of the Underwriters
under this Agreement may be terminated by the Representative, in its absolute
discretion, by notice given to and received by the Company prior to the delivery
of and payment for the Underwritten Securities, if, during the period beginning
on the date hereof to and including the Closing Date, (a) trading in securities
generally on the New York Stock Exchange, Inc. is suspended or materially
limited, or (b) a banking moratorium is declared by either Federal or New York
State authorities, or (c) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis or the declaration by the
United States of war or a national emergency the effect of which on the
financial markets of the United States is material and adverse and is such as to
make it, in the reasonable judgment of the Representative, impracticable or
inadvisable to market such Underwritten Securities on the terms and in the
manner contemplated by the Prospectus, or (d) the Company shall have received
notice that any rating of any of the debt securities of the Company 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 debt securities of the Company or (e)
there shall have occurred any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Company
or its subsidiaries which, in the Representative's reasonable judgment,
materially impairs the investment quality of the Underwritten Securities.
7. Reimbursement of Expenses. If the Company shall fail to tender the
Underwritten Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall decline to purchase
the Underwritten Securities for any reason permitted under this Agreement (other
than pursuant to Paragraph 8 or Paragraph 6(a)-(d) hereof), the Company shall
reimburse the Underwriters for the reasonable fees and expenses of their counsel
and for such other out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of Underwritten
Securities and the solicitation of any purchases of the Underwritten Securities,
and upon demand the Company shall pay the full amount thereof to the
Representative. If this Agreement is terminated pursuant to Paragraph 8 hereof
by reason of the default of one or more Underwriters or pursuant to Paragraph
6(a)-(d) hereof, the Company shall not be obligated to reimburse any Underwriter
on account of those expenses.
8. Default of Underwriters. If any Underwriter defaults in the
performance of its obligations under this Agreement, the remaining
non-defaulting Underwriters shall be obligated to purchase the Underwritten
Securities which the defaulting Underwriter agreed but failed to purchase in the
respective proportions which the principal amount of Underwritten Securities set
forth in Schedule II hereto to be purchased by each remaining non-defaulting
Underwriter set forth therein bears to the aggregate principal amount of
Underwritten Securities set forth therein to be purchased by all the remaining
non- defaulting Underwriters; provided that the remaining non-defaulting
Underwriters shall
17
not be obligated to purchase any Underwritten Securities if the aggregate
principal amount of Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 9.09% of the total principal
amount of Underwritten Securities, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the principal amount of
Underwritten Securities set forth in Schedule II hereto to be purchased by it.
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Underwritten
Securities. If the remaining Underwriters or other underwriters satisfactory to
the Representative do not elect to purchase the Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter, or the Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Paragraph 3(h) hereof.
Nothing contained in this Paragraph 8 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other Underwriters are obligated or agree to purchase the
Underwritten Securities of a defaulting or withdrawing Underwriter, either the
Representative or the Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of the Company
or the Representative may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
9. Notices. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement by, or on behalf of, the Representative.
Any notice by the Company to the Underwriters shall be sufficient if given in
writing or by facsimile transmission confirmed promptly in writing addressed to
the Representative at its address set forth in Schedule II hereto, and any
notice by the Underwriters to the Company shall be sufficient if given in
writing or by facsimile transmission confirmed promptly in writing addressed to
the Company at SBC Communications Inc., 000 X. Xxxxxxx Xxxxxx, 0xx Xxxxx, Xxx
Xxxxxxx, Xxxxx 00000-0000, Telecopy Number: (000) 000-0000, Attention of the
Senior Vice President, Treasurer, and Chief Financial Officer with a copy to the
Senior Executive Vice President and General Counsel, SBC Communications Inc.,
000 X. Xxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxx, Xxxxx 00000-0000, Telecopy
Number: (000) 000-0000.
10. Successors and Assigns. This Agreement shall be binding upon the
Underwriters, the Company and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except that (a) the representations, warranties, indemnities and agreements of
the Company contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act, and (b) the indemnity agreement of
the Underwriters contained in Paragraph 5 hereof shall be
18
deemed to be for the benefit of directors of the Company, officers of the
Company who have signed the Registration Statement and any person controlling
the Company. Nothing in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this Paragraph 10, any legal
or equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
11. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the financing described in this
Agreement, and any action under this Agreement taken by the Representative will
be binding upon all the Underwriters.
12. Business Day. For purposes of this Agreement, "business day" means
any day on which the New York Stock Exchange, Inc. is open for trading.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO
PRINCIPLES OF CONFLICTS OF LAWS.
19
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this Agreement shall represent a binding agreement between the Company and the
several Underwriters.
Very truly yours,
SBC COMMUNICATIONS INC.
By.....................................
[Insert title]
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
[NAME OF REPRESENTATIVE]
By..............................
[Insert title]
[For itself and as Representative of
the several Underwriters named in
Schedule II to the foregoing
Agreement.]
20
SCHEDULE I
UNDERWRITING AGREEMENT dated ______________, 200_.
REGISTRATION STATEMENT NO. 333-______
REPRESENTATIVE[S] AND ADDRESS(ES):
UNDERWRITTEN SECURITIES:
TITLE:
NUMBER OF SHARES:
PURCHASE PRICE: $ per share plus accrued dividends, if any,
from , 200 ].
EXPECTED REOFFERING PRICE: $ per share, subject to change by the
[Representative[s]] [Underwriters].
CLOSING: A.M. on , 200 , at , in New York Clearing
House (next day) funds.
[UNDERWRITER[S']['S] COMPENSATION: $ payable to the
[Representative[s] for the proportionate accounts of the] Underwriter[s] on the
Closing Date.]
BLACKOUT: Until days after the Closing Date.
The respective numbers of shares of the Underwritten Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The Underwritten Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the
Closing Date.
SCHEDULE A
NUMBER OF
UNDERWRITER SHARES
----------- ---------
..............................................................
-------------
Total........................................................
=============
SCHEDULE II
PRINCIPAL
NAME OF UNDERWRITER AMOUNT
------------------- ---------
................................................................ $
---------
Total............................................. $
=========