AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON May 24, 2000
Registration No. 333-36926
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SBC COMMUNICATIONS INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
DELAWARE
(STATE OR OTHER JURISDICTION OF INCORPORATION OR ORGANIZATION)
43-1301883
(I.R.S. EMPLOYER IDENTIFICATION NO.)
175 E. HOUSTON STREET
SAN ANTONIO, TEXAS 78205-2233
(210) 821-4105
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
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JUDITH SAHM
SBC COMMUNICATIONS INC.
175 E. HOUSTON STREET, 11TH FLOOR
SAN ANTONIO, TEXAS 78205-2233
(210) 821-4105
(NAME, ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA
CODE, OF AGENT FOR SERVICE FOR REGISTRANT)
WAYNE WIRTZ, ESQ. COPIES TO: JOHN T. BOSTELMAN, ESQ.
SBC COMMUNICATIONS INC. SULLIVAN & CROMWELL
15 E. HOUSTON STREET 125 BROAD STREET
SAN ANTONIO, TEXAS 78205-2233 NEW YORK, NEW YORK 10004
(210) 821-4105 (212) 558-4000
Approximate date of commencement of proposed sale to the public: From time to
time after the effective date of this Registration Statement, as determined by
market conditions.
If the only securities being registered on this Form are being offered pursuant
to dividend or interest reinvestment plans, please check the following box. [ ]
If any of the securities being registered on this Form are to be offered on a
delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering pursuant
to Rule 462(b) under the Securities Act, please check the following box and list
the Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under
the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES
AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE
A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT
SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF THE
SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
<PAGE>
This Amendment No. 1 to the Registration Statement on Form S-3 filed by SBC
Communications Inc., a Delaware corporation, on May 12, 2000 is being filed to
file the exhibits omitted from the Registration Statement on Form S-3, which
include Exhibit 1-b, Form of Underwriting Agreement for preferred stock and/or
depositary shares; Exhibit 1-c, Form of Underwriting Agreement for common stock;
and Exhibit 4-d, Form of Deposit Agreement, including form of depositary receipt
for depositary shares.
This Amendment No. 1 is also being filed for the purpose of filing Exhibit 25-a
to the above referenced Registration Statement, part of which was omitted from
Exhibit 25-a and filed as a separate Exhibit 7 to the Registration Statement on
Form S-3 due to a technical error.
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INDEX TO EXHIBITS TO REGISTRATION STATEMENT ON FORM S-3
The following exhibits are on file with the Securities and Exchange
Commission and are incorporated by reference into the prospectus filed on May
12, 2000. On April 28, 1995, SBC filed an amendment to its Restated Certificate
of Incorporation with the Secretary of State of the State of Delaware reflecting
the change in its name from Southwestern Bell Corporation to SBC Communications
Inc. Except as otherwise noted, references to "Southwestern Bell Corporation" in
the documents incorporated by reference are to the entity now known as "SBC
Communications Inc."
Exhibit Number
- --------------
1-a* Form of Underwriting Agreement for debt securities.
1-b Form of Underwriting Agreement for preferred stock and/or depositary
shares.
1-c Form of Underwriting Agreement for common stock.
4-a* Indenture, dated as of November 1, 1994, between SBC Communications Inc.
(formerly Southwestern Bell Corporation) and The Bank of New York, as
Trustee. The form or forms of debt securities with respect to each
particular series of debt securities will be filed as an exhibit to a
Current Report on Form 8-K of SBC Communications Inc. and incorporated
herein by reference.
4-b Restated Certificate of Incorporation of SBC Communications Inc.
(incorporated by reference to Exhibit 3-a to Quarterly Report on Form 10-Q
of SBC Communications Inc. for the quarter ended March 31, 1998, File
1-8610).
4-c Bylaws, dated June 26, 1998 (incorporated by reference to Exhibit 3-c to
Annual Report on Form 10-K of SBC Communications Inc. for the year ended
December 31, 1998, File 1-8610).
4-d Form of Deposit Agreement, including form of depositary receipt for
depositary shares.
5 Opinion of Mr. James D. Ellis, Senior Executive Vice President and General
Counsel, SBC Communications Inc., as to the validity of the Securities to
be issued by SBC.
12 Computation of Ratio of Earnings to Fixed Charges (incorporated by
reference to Exhibit 12 to Quarterly Report on Form 10-Q of SBC
Communications Inc. for the quarter ended March 21, 2000, File 1-8610).
23-a Consent of Ernst & Young LLP, independent auditors.
23-b Consent of Arthur Andersen LLP, independent public accountants.
23-c Consent of Mr. James D. Ellis as contained in his opinion filed as Exhibit
5.
24-a Power of Attorney of SBC.
24-b Power of Attorney of SBC.
24-c Power of Attorney of SBC
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25-a Form T-1 Statement of Eligibility under the Trust Indenture Act of 1939, as
amended, of The Bank of New York, as Trustee under the Indenture.**
- ------------------------
* Incorporated by reference to the corresponding exhibits to the Registrant's
registration statement on Form S-3 (No. 33-56909).
** Part of this exhibit was omitted from Exhibit 25-a and filed as a separate
Exhibit 7 to the Registration Statement on Form S-3 due to a technical
error.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Amendment
No. 1 to the registration statement to be signed on its behalf by the
undersigned, thereunto duly authorized in the city of San Antonio, state of
Texas, on the 24th day of May 2000.
SBC Communications Inc.
By /s/ Donald E. Kiernan
-------------------------------
Donald E. Kiernan
Senior Executive Vice President,
Treasurer and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Amendment No. 1 to the registration statement has been signed by the following
persons on the 24th day of May 2000, in the capacities and on the date
indicated.
Principal Executive Officer: Edward E. Whitacre, Jr.*,
Chairman and Chief Executive Officer
Principal Financial and
Accounting Officer Donald E. Kiernan,
Senior Executive Vice President, Treasurer
and Chief Financial Officer
DIRECTORS:
XEdward E. Whitacre, Jr.* By /s/ Donald E. Kiernan
Clarence C. Barksdale* -------------------------------
James E. Barnes* Donald E. Kiernan, as attorney-in-fact
August A. Busch, III* and on his own behalf as Principal
XRoyce S. Caldwell* Financial and Accounting Officer
William P. Clark*
Martin K. Eby, Jr.* May 24, 2000
Herman E. Gallegos*
Jess T. Hay*
James A. Henderson*
Bobby R. Inman*
Charles F. Knight*
Lynn M. Martin*
John B. McCoy*
Mary S. Metz*
Toni Rembe*
S. Donley Ritchey*
Joyce M. Roche*
Carlos Slim Helu*
Laura D'Andrea Tyson*
Patricia P. Upton*
* By power of attorney
Exhibit 1-b
SBC COMMUNICATIONS INC.
PREFERRED STOCK
FORM OF UNDERWRITING AGREEMENT
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(date)
To the Representative(s)
named in Schedule I
hereto of the Underwriters
named in Schedule II hereto
Dear Sirs:
SBC Communications Inc., a Delaware corporation (the "Company"), may
issue and sell from time to time shares of its preferred stock registered under
the registration statement referred to in Paragraph 1(a) hereof (the
"Securities", and individually a "Security"). The Securities will be issued in
one or more series, which series may vary as to dividend rates, redemption
provisions, selling prices, as to whether depositary shares will be offered and
other terms, with all such terms for any particular series of the Securities
being determined at the time of sale. The Company proposes to sell to the
underwriters named in Schedule II hereto (the "Underwriters") for whom you are
acting as representative(s) (the "Representative"), a series of Securities with
the terms and in the aggregate principal amount specified in Schedule I hereto
(the "Underwritten Securities" and, individually, an "Underwritten Security").
1. Representations and Warranties of the Company. The Company represents
and warrants to, and agrees with, the several Underwriters that:
(a) A registration statement on Form S-3 with respect to the
Securities has been prepared by the Company in conformity with the
requirements of the Securities Act of 1933, as amended (the "Securities
Act"), and the rules and regulations (the "Rules and Regulations") of the
Securities and Exchange Commission (the "Commission") thereunder and has
become effective. As used in this Agreement, (i) "Registration Statement"
means that registration statement, as amended or supplemented to the date
hereof (including all documents incorporated therein by reference); (ii)
"Preliminary Prospectus" means each prospectus (including all documents
incorporated therein by reference) included in that Registration Statement,
or amendments thereto or supplements thereof, before it became effective
under the Securities Act, including any prospectus filed with the
Commission pursuant to Rule 424(a) of the Rules and
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Regulations; (iii) "Basic Prospectus" means the prospectus (including all
documents incorporated therein by reference) included in the Registration
Statement; and (iv) "Prospectus" means the Basic Prospectus, together with
any prospectus amendment or supplement (including in each case all
documents incorporated therein by reference) specifically relating to the
Underwritten Securities, as filed with, or mailed for filing to, the
Commission pursuant to paragraph (b) or (c) of Rule 424 of the Rules and
Regulations. The Commission has not issued any order preventing or
suspending the use of the Prospectus.
(b) The Registration Statement and each Prospectus contain, and (in
the case of any amendment or supplement to any such document, or any
material incorporated by reference in any such document, filed with the
Commission after the date as of which this representation is being made)
will contain at all times during the period specified in Paragraph 3(c)
hereof, all statements which are required by the Securities Act, the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and the
rules and regulations of the Commission under such Acts; and the
Registration Statement and the Prospectus do not, and (in the case of any
amendment or supplement to any such document, or any material incorporated
by reference in any such document, filed with the Commission after the date
as of which this representation is being made) will not at any time during
the period specified in Paragraph 3(c) hereof, contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary to make the statements therein not misleading;
provided that the Company makes no representation or warranty as to
information contained in or omitted from the Registration Statement or the
Prospectus in reliance upon and in conformity with information furnished in
writing to the Company through the Representative by or on behalf of any
Underwriter specifically for use therein.
(c) The Company is not in violation of its corporate charter or bylaws
or in default under any agreement, indenture or instrument, the effect of
which violation or default would be material to the Company; the execution,
delivery and performance of this Agreement and compliance by the Company
with the provisions of the Underwritten Securities will not conflict with,
result in the creation or imposition of any lien, charge or encumbrance
upon any of the assets of the Company or any of its material subsidiaries
pursuant to the terms of, or constitute a default under, any agreement,
indenture or instrument, or result in a violation of the corporate charter
or bylaws of the Company or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company; and except as
required by the Securities Act and applicable state securities laws, no
consent, authorization or order of, or filing or registration with, any
court or governmental agency is required for the execution, delivery and
performance of this Agreement.
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(d) Except as described in or contemplated by the Registration
Statement and the Prospectus, there shall have not occurred any changes or
any development involving a prospective change, or affecting particularly
the business or properties of the Company or its subsidiaries which
materially impairs the investment quality of the Underwritten Securities
since the dates as of which information is given in the Registration
Statement and the Prospectus.
(e) Each of the Company and its subsidiaries has been duly
incorporated, is validly existing as a corporation in good standing under
the laws of its jurisdiction of incorporation with full corporate power and
authority to own its properties and conduct its business as described in
the Prospectus, and is duly qualified to do business as a foreign
corporation and is in good standing under the laws of each jurisdiction
which requires such qualification wherein it owns or leases properties or
conducts business, except where the failure to so qualify would not have a
material adverse effect on the Company and its subsidiaries taken as a
whole.
(f) The Underwritten Securities have been duly authorized and, when
the Underwritten Securities have been delivered and paid for in accordance
with this Agreement on the Closing Date (as defined below), such
Underwritten Securities will have been validly issued, fully paid and
nonassessable and will constitute legally binding obligations of the
Company; and the Underwritten Securities will conform to the description
thereof contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Underwritten Securities.
( ) [If the Underwritten Securities are convertible into Common Stock:
When the Underwritten Securities are delivered and paid for pursuant to
this Agreement on the Closing Date (as defined below), such Underwritten
Securities will be convertible into Common Stock of the Company in
accordance with their terms; the shares of Common Stock initially issuable
upon conversion of such Underwritten Securities have been duly authorized
and reserved for issuance upon such conversion and, when issued upon such
conversion, will be validly issued, fully paid and nonassessable; the
outstanding shares of Common Stock have been duly authorized and validly
issued, are fully paid and nonassessable and conform to the description
thereof contained in the Prospectus; and the stockholders of the Company
have no preemptive rights with respect to the Common Stock.]
( ) [If the Underwritten Securities are convertible into debt
securities of the Company: When the Underwritten Securities are delivered
and paid for pursuant to this Agreement on the Closing Date (as defined
below), such Underwritten Securities will be convertible into debt
securities of the Company in accordance with their terms; the Indenture
under which the debt securities will be issued will have been duly
authorized and duly qualified under the Trust Indenture Act; the debt
securities
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initially issuable upon conversion of such Underwritten Securities have
been duly authorized; and, when the Underwritten Securities have been
delivered upon such conversion, the Indenture will have been duly executed
and delivered and will conform to the description thereof in the
Prospectus; such debt securities will have been duly executed
authenticated, issued and delivered and will conform to the description
thereof contained in the Prospectus and the Indenture, and such debt
securities, when issued upon such conversion, will constitute valid and
legally binding obligations of the Company, enforceable in accordance with
their terms, subject to bankruptcy, insolvency, fraudulent transfer,
reorganization, moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.]
[Except as disclosed in the Prospectus, there are no contracts,
agreements or understandings between the Company and any person that
would give rise to a valid claim against the Company or any
Underwriter for a brokerage commission, finder's fee or other like
payment in connection with the offering of the Underwritten
Securities.]
[There are no contracts, agreements or understandings between the
Company and any person granting such person the right to require the
Company to file a registration statement under the Securities Act with
respect to any securities of the Company owned or to be owned by such
person or to require the Company to include such securities in the
securities registered pursuant to the Registration Statement or in any
securities being registered pursuant to any other registration
statement filed by the Company under the Securities Act.]
(g) The Underwritten Securities have been approved for listing on the
stock exchange indicated in Schedule I hereto, subject to notice of
issuance.
(h) This Agreement has been duly authorized, executed and delivered by
the Company.
(i) Except as described in the Prospectus, there is no material
litigation or governmental proceeding pending or, to the knowledge of the
Company, threatened against the Company or any of its subsidiaries which is
reasonably expected to result in any material adverse change in the
financial condition, results of operations, business or prospects of the
Company and its subsidiaries taken as a whole or which is required to be
disclosed in the Registration Statement.
(j) The financial statements filed as part of the Registration
Statement or included in any Preliminary Prospectus or the Prospectus
present, or (in the case of any amendment or supplement to any such
document, or any material incorporated by
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reference in any such document, filed with the Commission after the date as
of which this representation is being made) will present at all times
during the period specified in Paragraph 3(c) hereof, fairly, the
consolidated financial condition and results of operations of the Company
and its subsidiaries, at the dates and for the periods indicated, and have
been, and (in the case of any amendment or supplement to any such document,
or any material incorporated by reference in any such document, filed with
the Commission after the date as of which this representation is being
made) will be at all times during the period specified in Paragraph 3(c)
hereof, prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods involved
(except as described in the notes thereto).
(k) The documents incorporated by reference into any Preliminary
Prospectus or the Prospectus have been, and (in the case of any amendment
or supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the date as
of which this representation is being made) will be, at all times during
the period specified in Paragraph 3(c) hereof, prepared by the Company in
conformity with the applicable requirements of the Securities Act and the
Rules and Regulations and the Exchange Act and the rules and regulations of
the Commission thereunder and such documents have been, or (in the case of
any amendment or supplement to any such document, or any material
incorporated by reference in any such document, filed with the Commission
after the date as of which this representation is being made) will be at
all times during the period specified in Paragraph 3(c) hereof, timely
filed as required thereby.
(l) There are no contracts or other documents which are required to be
filed as exhibits to the Registration Statement by the Securities Act or by
the Rules and Regulations, or which were required to be filed as exhibits
to any document incorporated by reference in the Prospectus by the Exchange
Act or the rules and regulations of the Commission thereunder, which have
not been filed as exhibits to the Registration Statement or to such
document or incorporated therein by reference as permitted by the Rules and
Regulations or the rules and regulations of the Commission under the
Exchange Act as required.
2. Purchase and Offering of Underwritten Securities. Subject to the terms
and conditions and in reliance upon the representations and warranties herein
set forth, the Company agrees to sell to each Underwriter, severally and not
jointly, and each Underwriter agrees, severally and not jointly, to purchase
from the Company, at the purchase price and subject to the other terms set forth
in this Agreement and Schedule I hereto, the principal amount of the
Underwritten Securities set forth opposite its name in Schedule II hereto.
Schedule I hereto will also specify the time and date of delivery and payment
(such time and date, or such other time not later than seven full business days
thereafter as the Representative and the Company agree as the time for payment
and
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delivery, being herein and in Schedule I hereto referred to as the "Closing
Date"), the place of delivery and payment and any details of the terms of
offering that should be reflected in the prospectus supplement relating to the
offering of the Underwritten Securities, including, but not limited to, dividend
rate, redemption provisions, any sinking fund requirements, and whether any
depositary shares will be offered. For purposes of Rule 15c6-1 under the
Securities Exchange Act of 1934, the Closing Date (if later than the otherwise
applicable settlement date) shall be the date for payment of funds and delivery
of securities for all the Underwritten Securities sold pursuant to the offering.
It is understood that the Underwriters propose to offer the Securities for sale
as set forth in the Prospectus.
The certificates for the Underwritten Securities delivered to the
Underwriters on the Closing Date will be in definitive form, in such
denominations and registered in such names as the Representative requests.
The Company shall not be obligated to deliver any Underwritten Securities
except upon payment for all Underwritten Securities to be purchased pursuant to
this Agreement as hereinafter provided.
3. Certain Agreements of the Company. The Company agrees with the several
Underwriters that:
(a) The Company will furnish promptly to the Representative and to
counsel for the Underwriters, signed copies of the Registration Statement
as originally filed, including all exhibits and each amendment and
supplement thereto filed prior to the date hereof and relating to or
covering the Underwritten Securities, and a copy of the Prospectus filed
with the Commission, including all documents incorporated therein by
reference and all consents and exhibits filed therewith.
(b) The Company will deliver promptly to the Representative such
reasonable number of the following documents as the Representative may
request: (i) conformed copies of the Registration Statement (excluding
exhibits other than the computation of the ratio of earnings to fixed
charges and this Agreement), (ii) the Prospectus and (iii) any documents
incorporated by reference in the Prospectus.
(c) During any period when a Prospectus relating to the Underwritten
Securities is required by law to be delivered, the Company will not file
any amendment of the Registration Statement nor will the Company file any
amendment or supplement to the Prospectus (except for (i) an amendment or
supplement consisting solely of the filing of a document under the Exchange
Act or (ii) a supplement relating to an offering of securities other than
the Underwritten Securities), unless the Company has furnished the
Representative a copy of such proposed amendment or supplement for
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its review prior to filing and will not file any such proposed amendment or
supplement to which the Representative reasonably objects. Subject to the
foregoing sentence, the Company will cause the Prospectus and any amendment
or supplement thereto to be filed with the Commission as required pursuant
to Rule 424 under the Securities Act. The Company will promptly advise the
Representative (i) when the Prospectus or any amendment or supplement
thereto shall have been filed with the Commission pursuant to Rule 424
under the Securities Act, (ii) when any amendment of the Registration
Statement shall have become effective, (iii) of any request by the
Commission for any amendment of the Registration Statement or amendment of
or supplement to the Prospectus or for any additional information, (iv) of
the issuance by the Commission of any stop order suspending the
effectiveness of the Registration Statement or the institution or
threatening of any proceeding for that purpose and (v) of the receipt by
the Company of any notification with respect to the suspension of the
qualification of the Underwritten Securities for sale in any jurisdiction
or the initiation or threatening of any proceeding for such purpose. The
Company will promptly (upon filing thereof) furnish the Representative a
copy of any amendment or supplement to the Prospectus or Registration
Statement not furnished to the Representative for prior review pursuant to
exceptions (i) or (ii) of the first sentence of this subsection (c). The
Company will use its best efforts to prevent the issuance of any such stop
order and, if issued, to obtain as soon as possible the withdrawal thereof.
(d) If, at any time when a prospectus relating to the Underwritten
Securities is required to be delivered under the Securities Act in
connection with sales by any Underwriter or dealer, any event occurs as a
result of which the Registration Statement, as then amended, or the
Prospectus as then supplemented, would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, or if it shall be necessary at any time to amend the
Registration Statement or to supplement the Prospectus to comply with the
Securities Act or the Exchange Act or the respective rules thereunder, the
Company promptly will (i) notify the Representative of the happening of
such event, (ii) prepare and file with the Commission, subject to the first
sentence of Paragraph 3(c), an amendment or supplement which will correct
such statement or omission or an amendment or supplement which will effect
such compliance and (iii) will supply any such amended or supplemented
prospectus to the Representative in such quantities as the Representative
may reasonably request.
(e) As soon as practicable, the Company will make generally available
to its security holders and to the Representative an earnings statement or
statements of the Company, which will satisfy the provisions of Section
11(a) of the Securities Act and Rule 158 under the Securities Act.
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(f) During a period of five years after the date hereof, the Company
will furnish to the Representative copies of all reports and financial
statements furnished by the Company to each securities exchange on which
securities issued by the Company may be listed pursuant to requirements of
or agreements with such exchange or to the Commission pursuant to the
Exchange Act or any rule or regulation of the Commission thereunder to the
extent that such documents are not available on the Commission's website.
(g) The Company will endeavor to qualify the Underwritten Securities
for sale and arrange for the determination of their eligibility for
investment under the laws of such jurisdictions as the Representative may
designate and will maintain such qualifications in effect so long as
required for the distribution of the Underwritten Securities, provided that
in connection therewith the Company shall not be required to qualify as a
foreign corporation or take any action which would subject it to general or
unlimited service of process in any jurisdiction where it is not now so
subject.
(h) The Company will pay the costs incident to the performance of its
obligations under this Agreement and will reimburse the Underwriters (if
and to the extent incurred by them) for the costs incident to the
authorization, issuance and delivery of the Underwritten Securities and any
taxes payable in that connection; the costs incident to the preparation,
printing and filing under the Securities Act of the Registration Statement
and any amendments, supplements and exhibits thereto; the costs of
distributing the Registration Statement as originally filed and each
amendment and post-effective amendment thereof (including exhibits), any
Preliminary Prospectus, the Prospectus and any documents incorporated by
reference in any of the foregoing documents; the costs of producing this
Agreement; fees paid to rating agencies in connection with the rating of
the Underwritten Securities; the fees and expenses of qualifying the
Underwritten Securities under the securities laws of the several
jurisdictions as provided in this Paragraph and of preparing and printing a
Blue Sky Memorandum and a memorandum concerning the legality of the
Underwritten Securities as an investment (including fees of counsel to the
Underwriters); and all other costs and expenses incident to the performance
of the Company's obligations under this Agreement; provided that, except as
provided in this Paragraph and in Paragraph 7 hereof, the Underwriters
shall pay their own costs and expenses, including the fees and expenses of
their counsel, any transfer taxes on the Underwritten Securities which they
may sell and the expenses of advertising any offering of the Underwritten
Securities made by the Underwriters.
(i) Until the termination of the offering of the Underwritten
Securities, the Company will timely file all documents, and any amendments
to previously filed documents, required to be filed by the Company pursuant
to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act.
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(j) The Company will not offer, sell, contract to sell, pledge or
otherwise dispose of, directly or indirectly, or file with the Commission a
registration statement under the Securities Act relating to any series of
preferred stock issued or guaranteed by the Company, or publicly disclose
the intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Representative for a period
beginning at the time of execution of this Agreement and ending the number
of days after the Closing Date specified under "Blackout" in Schedule I
hereto.
[If the Underwritten Securities are convertible into Common Stock: The
Company will not offer, sell, contract to sell, pledge or otherwise dispose
of, directly or indirectly, or file with the Commission a registration
statement under the Securities Act relating to, any additional shares of
its Common Stock or securities convertible into or exchangeable or
exercisable for any shares of its Common Stock, or publicly disclose the
intention to make any such offer, sale, pledge, disposition or filing,
without the prior written consent of the Representative for a period
beginning at the time of execution of this Agreement and ending the number
of days after the Closing Date specified under "Blackout" in Schedule I
hereto, except [issuances of Common Stock pursuant to the conversion or
exchange of convertible or exchangeable securities or the exercise of
warrants or options, in each case outstanding on the date of this Agreement
or the exercise of any other employee stock options outstanding on the date
of this Agreement or] issuances of Common Stock pursuant to the Company's
dividend reinvestment plan.]
4. Conditions of the Obligations of the Underwriters. The respective
obligations of the several Underwriters under this Agreement with respect to the
Underwritten Securities are subject to the accuracy, on the date of this
Agreement and on the Closing Date, of the representations and warranties of the
Company contained herein, to performance by the Company of its obligations
hereunder, and to each of the following additional terms and conditions
applicable to the Underwritten Securities:
(a) At or before the Closing Date, no stop order suspending the
effectiveness of the Registration Statement nor any order directed to any
document incorporated by reference in the Prospectus shall have been issued
and prior to that time no stop order proceeding shall have been initiated
or threatened by the Commission and no challenge shall have been made by
the Commission or its staff as to the accuracy or adequacy of any document
incorporated by reference in the Prospectus; any request of the Commission
for inclusion of additional information in the Registration Statement or
the Prospectus or otherwise shall have been complied with; and after the
date hereof the Company shall not have filed with the Commission any
amendment or supplement to the Registration Statement or the Prospectus (or
any document incorporated by reference therein) that shall have been
disapproved by the Representative.
9
<PAGE>
(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 Sullivan &
Cromwell, counsel for the Underwriters, and the Company shall have
furnished to such counsel all documents and information that they may
reasonably request to enable them to pass upon such matters.
(d) The Senior Executive Vice President and General Counsel to the
Company shall have furnished to the Representative his opinion addressed to
the Underwriters and dated the Closing Date, as counsel, to the effect
that:
(i) the Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of
the State of Delaware; each material subsidiary of the
Company has been duly incorporated and is validly existing
as a corporation in good standing under the laws of the
jurisdiction of its incorporation; and each of the Company
and its material subsidiaries has full corporate power and
authority to own its properties and conduct its business as
described in the Prospectus, and is duly qualified to do
business as a foreign corporation and is in good standing
under the laws of each jurisdiction which requires such
qualification wherein it owns or leases properties or
conducts business, except where the failure to so qualify
would not have a material adverse effect on the Company and
its subsidiaries taken as a whole;
(ii) to the best knowledge of such counsel, there is no pending
or threatened action, suit or proceeding before any court or
governmental agency, authority, body or any arbitrator
involving the Company or any of its subsidiaries of a
character required to be disclosed in the Registration
Statement which is not adequately disclosed in the
Prospectus, and there is no franchise, contract or other
document of a character required to be described in the
Registration Statement or Prospectus, or to be filed as an
exhibit, which is not described or filed as required; and
the statements included or incorporated by reference in the
Prospectus describing any legal proceedings or material
contracts or agreements
10
<PAGE>
relating to the Company or any of its subsidiaries fairly
summarize such matters; the Underwritten Securities conform
to the descriptions thereof contained under the following
(or comparable) captions of the Prospectus: "Description of
Securities" and "Plan of Distribution";
(iii) the Underwritten Securities have been duly authorized and,
when delivered and paid for in accordance with this
Agreement on the Closing Date, such Underwritten Securities
will have been validly issued, fully paid and nonassessable
and will conform to the description thereof contained in the
Prospectus; and the shareholders of the Company have no
preemptive rights with respect to the Underwritten
Securities;
( ) [If the Underwritten Securities are convertible into
Common Stock: the Underwritten Securities are convertible
into Common Stock of the Company in accordance with its
terms, and the shares of Common Stock initially issuable
upon conversion of the Underwritten Securities have been
duly authorized and reserved for issuance upon such
conversion and, when issued upon such conversion, will be
validly issued, fully paid and nonassessable; the
outstanding shares of Common Stock have been duly authorized
and validly issued, are fully paid and nonassessable and
conform to the description thereof contained in the
Prospectus; and the stockholders of the Company have no
preemptive rights with respect to the Common Stock;]
( ) [If the Underwritten Securities are convertible into debt
securities of the Company: The Underwritten Securities are
convertible into debt securities of the Company in
accordance with their terms; the Indenture under which the
debt securities will be issued has been duly authorized and
duly qualified under the Trust Indenture Act; the debt
securities initially issuable upon conversion of such
Underwritten Securities have been duly authorized; the
Indenture has been duly executed and delivered and conforms
to the description thereof in the Prospectus; and the debt
securities conform to the description thereof contained in
the Prospectus and, when duly executed, authenticated,
issued and delivered upon such conversion, will constitute
valid and legally binding obligations of the Company,
enforceable in accordance with their terms, subject to
bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium and similar laws of general applicability
relating to or affecting creditors' rights and to general
equity principles;]
11
<PAGE>
(iv) the Registration Statement and any amendments thereto have
become effective under the Securities Act; to the best
knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued,
no proceedings for that purpose have been instituted or
threatened, and the Registration Statement, the Prospectus
and each amendment thereof or supplement thereto as of their
respective effective or issue dates (other than the
financial statements and other financial and statistical
information contained therein as to which such counsel need
express no opinion) complied as to form in all material
respects with the applicable requirements of the Securities
Act, the Exchange Act and the respective rules and
regulations thereunder; and such counsel has no reason to
believe that the Registration Statement, or any amendment
thereof, at the time it became effective or at the date of
this Agreement or at the Closing Date, contained any untrue
statement of a material fact or omitted to state any
material fact required to be stated therein or necessary to
make the statements therein not misleading or that the
Prospectus, at the date of this Agreement or at the Closing
Date, included any untrue statement of a material fact or
omitted to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading;
(v) this Agreement has been duly authorized, executed and
delivered by the Company;
(vi) no order, consent, approval, authorization, registration or
qualification of or with any governmental agency or body
having jurisdiction over the Company or any of its
properties is required for the issue and sale of the
Underwritten Securities or the consummation by the Company
of the transactions contemplated by this Agreement, except
such as have been obtained under the Securities Act and such
consents, approvals, authorizations, registrations or
qualifications as may be required under state securities or
Blue Sky laws in connection with the sale and distribution
of the Underwritten Securities; and
(vii) neither the execution and delivery of this Agreement, the
issue and sale of the Underwritten Securities, nor the
consummation of any other of the transactions herein or
therein contemplated nor the fulfillment of the terms hereof
or thereof will conflict with, result in a breach of, or
constitute a default under, the charter or by-laws of the
Company or the terms of any indenture or other agreement or
instrument known to such counsel and to which the Company or
any of its material subsidiaries is
12
<PAGE>
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 Sullivan & Cromwell,
counsel for the Underwriters, such opinion or opinions, dated the date
hereof, with respect to the issuance and sale of the Underwritten
Securities, the Registration Statement, the Prospectus and other related
matters as the Representative may reasonably require, and the Company shall
have furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(f) The Company shall have furnished to the Representative a
certificate signed by its Chairman of the Board or its President or a
Senior Vice President and its Treasurer or an Assistant Treasurer stating
that after reasonable investigation and to the best of their knowledge:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on
and as of the Closing Date with the same effect as if made
on the Closing Date; the Company has complied with all the
agreements and satisfied all the conditions on its part to
be performed or satisfied as a condition to the obligation
of the Underwriters to purchase the Underwritten Securities
hereunder; and the conditions set forth in subsections (a)
and (b) of this Paragraph 4 have been fulfilled;
(ii) as of the date of the Prospectus, the Registration Statement
and the Prospectus did not include any untrue statement of a
material fact and
13
<PAGE>
did not omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading; and
(iii) since the date of the most recent financial statements
included or incorporated by reference in the Prospectus,
there has been no material adverse change in the condition
(financial or other), earnings, business or properties of
the Company or its subsidiaries, whether or not arising from
transactions in the ordinary course of business, except as
set forth in or contemplated in the Prospectus.
(g) The Company shall have furnished to the Representative (i) a
letter of the Company's independent auditors, addressed to the Board of
Directors of the Company and the Underwriters and dated the later of the
effective date of the Registration Statement or the date of the filing of
the Company's latest Annual Report on Form 10-K, of the type described in
the American Institute of Certified Public Accountants' Statement on
Auditing Standards No. 49 and covering such financial statement items as
counsel for the Underwriters may reasonably have requested and (ii) a
letter of the Company's independent auditors, addressed to the Underwriters
and dated the Closing Date, stating, as of the date of such letter (or,
with respect to matters involving changes or developments since the
respective dates as of which specified financial information is given in
the Prospectus, as of a date not more than five days prior to the date of
such letter), the conclusions and findings of such firm with respect to the
financial information and other matters covered by its letter referred to
in subclause (i) above and confirming in all material respects the
conclusions and findings set forth in such prior letter.
(h) No order, consent, approval, authorization, registration or
qualification of or with any governmental agency or body having
jurisdiction over the Company or any of its properties is required for the
issue and sale of the Underwritten Securities or the consummation by the
Company of the transactions contemplated by this Agreement, except such as
have been, or will have been prior to the Closing Date, obtained under the
Securities Act and such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or Blue Sky
laws in connection with the purchase and distribution of the Underwritten
Securities by the Underwriters.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with the
provisions hereof only if they are in form and substance satisfactory to
the Representative.
5. Indemnification and Contribution. (a) The Company shall indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Securities Act from and against any loss,
claim, damage or liability, joint or several, and any action in respect thereof,
to which that Underwriter or
14
<PAGE>
controlling person may become subject, under the Securities Act or otherwise,
insofar as such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement of a material fact
contained in any Preliminary Prospectus, the Registration Statement or the
Prospectus, or arises out of, or is based upon, the omission or alleged omission
to state therein a material fact required to be stated therein or necessary to
make the statements therein not misleading, and shall reimburse each Underwriter
and such controlling person for any legal and other expenses reasonably incurred
by that Underwriter or controlling person in investigating or defending or
preparing to defend against any such loss, claim, damage, liability or action as
such expenses are incurred (but no more frequently than annually); provided,
however, that the Company shall not be liable in any such case to the extent
that any such loss, claim, damage, liability or action arises out of, or is
based upon, any untrue statement or alleged untrue statement or omission or
alleged omission made in any Preliminary Prospectus, the Registration Statement
or the Prospectus in reliance upon and in conformity with written information
furnished to the Company through the Representative by or on behalf of any
Underwriter specifically for use therein. The foregoing indemnity agreement is
in addition to any liability which the Company may otherwise have to any
Underwriter or controlling person.
(b) Each Underwriter shall indemnify and hold harmless the Company,
each of their directors, each of their officers who signed the Registration
Statement and any person who controls the Company within the meaning of the
Securities Act from and against any loss, claim, damage or liability, joint
or several, and any action in respect thereof, to which the Company, or any
such director, officer or controlling person may become subject, under the
Securities Act or otherwise, insofar as such loss, claim, damage, liability
or action arises out of, or is based upon, any untrue statement or alleged
untrue statement of a material fact contained in any Preliminary
Prospectus, the Registration Statement or the Prospectus, or arises out of,
or is based upon, the omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, but in each case only to the extent that
the untrue statement or alleged untrue statement or omission or alleged
omission was made in reliance upon and in conformity with information
furnished in writing to the Company through the Representative by or on
behalf of that Underwriter specifically for use therein, and shall
reimburse the Company for any legal and other expenses reasonably incurred
by the Company or any such director, officer or controlling person in
investigating or defending or preparing to defend against any such loss,
claim, damage, liability or action as such expenses are incurred (but no
more frequently than annually). The foregoing indemnity agreement is in
addition to any liability which any Underwriter may otherwise have to the
Company or any of its directors, officers or controlling persons.
15
<PAGE>
(c) Promptly after receipt by an indemnified party under this
Paragraph 5 of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made
against the indemnifying party under this Paragraph 5, notify the
indemnifying party in writing of the claim or the commencement of that
action, provided that the failure to notify the indemnifying party shall
not relieve it from any liability which it may have to an indemnified party
otherwise than under Paragraph 5(a) or 5(b). If any such claim or action
shall be brought against an indemnified party, and it shall notify the
indemnifying party thereof, the indemnifying party shall be entitled to
participate therein, and, to the extent that it wishes, jointly with any
other similarly notified indemnifying party, to assume the defense thereof
with counsel satisfactory to the indemnified party. After notice from the
indemnifying party to the indemnified party of its election to assume the
defense of such claim or action, the indemnifying party shall not be liable
to the indemnified party under this Paragraph 5 for any legal or other
expenses subsequently incurred by the indemnified party in connection with
the defense thereof other than reasonable costs of investigation. If the
indemnifying party shall not elect to assume the defense of such action,
such indemnifying party will reimburse such indemnified party for the
reasonable fees and expenses of any counsel retained by them. In the event
that the parties to any such action (including impleaded parties) include
both the Company and one or more Underwriters and either (i) the
indemnifying party or parties and indemnified party or parties mutually
agree or (ii) representation of both the indemnifying party or parties and
the indemnified party or parties by the same counsel is inappropriate under
applicable standards of professional conduct or in the opinion of such
counsel due to actual or potential differing interests between them, then
the indemnifying party shall not have the right to assume the defense of
such action on behalf of such indemnified party and will reimburse such
indemnified party for the reasonable fees and expenses of any counsel
retained by them and satisfactory to the indemnifying party, it being
understood that the indemnifying party shall not, in connection with any
one action or separate but similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances,
be liable for the reasonable fees and expenses of more than one separate
firm of attorneys for all such indemnified parties, which firm shall be
designated in writing by the Representative in the case of an action in
which one or more Underwriters or controlling persons are indemnified
parties and by the Company in the case of an action in which the Company or
any of its directors, officers or controlling persons are indemnified
parties. The indemnifying party or parties shall not be liable under this
Agreement with respect to any settlement made by any indemnified party or
parties without prior written consent by the indemnifying party or parties
to such settlement.
(d) If the indemnification provided for in this Paragraph 5 shall for
any reason be unavailable to an indemnified party under Paragraph 5(a) or
5(b) hereof in respect of any loss, claim, damage or liability, or any
action in respect thereof, referred to
16
<PAGE>
therein, then each indemnifying party shall, in lieu of indemnifying such
indemnified party, contribute to the amount paid or payable by such
indemnified party as a result of such loss, claim, damage or liability, or
action in respect thereof, in such proportion as is appropriate to reflect
the relative benefits received by the Company, on the one hand, and the
Underwriters, on the other hand, from the offering of the Underwritten
Securities. If, however, this allocation is not permitted by applicable
law, then each indemnifying party shall contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage
or liability, or action in respect thereof, in such proportion as shall be
appropriate to reflect the relative benefits received by the Company, on
the one hand, and the Underwriters, on the other hand, from the offering of
the Underwritten Securities and the relative fault of the Company, on the
one hand, and the Underwriters, on the other hand, with respect to the
statements or omissions which resulted in such loss, claim, damage or
liability, or action in respect thereof, as well as any other relevant
equitable considerations. The relative benefits received by the Company, on
the one hand, and the Underwriters, on the other hand, with respect to such
offering shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Underwritten Securities (before deducting
expenses) received by the Company bear to the total underwriting discounts
and commissions received by the Underwriters with respect to such offering.
The relative fault shall be determined by reference to whether the untrue
or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by the
Company or the Underwriters, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The amount paid or payable by an indemnified party
as a result of the loss, claim, damage or liability, or action in respect
thereof, referred to above in this Paragraph 5(d) shall be deemed to
include, for purposes of this Paragraph 5(d), any legal or other expenses
reasonably incurred by such indemnified party in connection with
investigating or defending any such action or claim. Notwithstanding the
provisions of this Paragraph 5(d), no Underwriter shall be required to
contribute any amount in excess of the amount by which the total price at
which the Underwritten Securities underwritten by it and distributed to the
public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise paid or become liable to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of
Section 11(f) of the Securities Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. The
Underwriters' obligations to contribute as provided in this Paragraph 5(d)
are several in proportion to their respective underwriting obligations and
not joint.
(e) The agreements contained in this Paragraph 5 and the
representations, warranties and agreements of the Company in Paragraph 1
and Paragraph 3 hereof
17
<PAGE>
shall survive the delivery of the Underwritten Securities and shall remain
in full force and effect, regardless of any termination or cancellation of
this Agreement or any investigation made by or on behalf of any indemnified
party.
6. Termination of Obligations. The obligations of the Underwriters under
this Agreement may be terminated by the Representative, in its absolute
discretion, by notice given to and received by the Company prior to the delivery
of and payment for the Underwritten Securities, if, during the period beginning
on the date hereof to and including the Closing Date, (a) trading in securities
generally on the New York Stock Exchange, Inc. is suspended or materially
limited, or (b) a banking moratorium is declared by either Federal or New York
State authorities, or (c) there shall have occurred any outbreak or material
escalation of hostilities or other calamity or crisis or the declaration by the
United States of war or a national emergency the effect of which on the
financial markets of the United States is material and adverse and is such as to
make it, in the reasonable judgment of the Representative, impracticable or
inadvisable to market such Underwritten Securities on the terms and in the
manner contemplated by the Prospectus, or (d) the Company shall have received
notice that any rating of any of the debt securities of the Company [or its
preferred stock] shall have been lowered by any nationally recognized
statistical rating organization (as defined in Rule 15c3-1 under the Exchange
Act) or any such organization has publicly announced that it has under
surveillance or review, with possible negative implications, the ratings of any
of the debt securities of the Company [or any of its preferred stock] or (e)
there shall have occurred any change, or any development involving a prospective
change, in or affecting particularly the business or properties of the Company
or its subsidiaries which, in the Representative's reasonable judgment,
materially impairs the investment quality of the Underwritten Securities.
7. Reimbursement of Expenses. If the Company shall fail to tender the
Underwritten Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall decline to purchase
the Underwritten Securities for any reason permitted under this Agreement (other
than pursuant to Paragraph 8 or Paragraph 6(a)-(d) hereof), the Company shall
reimburse the Underwriters for the reasonable fees and expenses of their counsel
and for such other out-of-pocket expenses as shall have been incurred by them in
connection with this Agreement and the proposed purchase of Underwritten
Securities and the solicitation of any purchases of the Underwritten Securities,
and upon demand the Company shall pay the full amount thereof to the
Representative. If this Agreement is terminated pursuant to Paragraph 8 hereof
by reason of the default of one or more Underwriters or pursuant to Paragraph
6(a)-(d) hereof, the Company shall not be obligated to reimburse any Underwriter
on account of those expenses.
18
<PAGE>
8. Default of Underwriters. If any Underwriter defaults in the performance
of its obligations under this Agreement, the remaining non-defaulting
Underwriters shall be obligated to purchase the Underwritten Securities which
the defaulting Underwriter agreed but failed to purchase in the respective
proportions which the principal amount of Underwritten Securities set forth in
Schedule II hereto to be purchased by each remaining non-defaulting Underwriter
set forth therein bears to the aggregate principal amount of Underwritten
Securities set forth therein to be purchased by all the remaining non-defaulting
Underwriters; provided that the remaining non-defaulting Underwriters shall not
be obligated to purchase any Underwritten Securities if the aggregate principal
amount of Underwritten Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase exceeds 9.09% of the total principal
amount of Underwritten Securities, and any remaining non-defaulting Underwriter
shall not be obligated to purchase more than 110% of the principal amount of
Underwritten Securities set forth in Schedule II hereto to be purchased by it.
If the foregoing maximums are exceeded, the remaining non-defaulting
Underwriters, or those other underwriters satisfactory to the Representatives
who so agree, shall have the right, but shall not be obligated, to purchase, in
such proportion as may be agreed upon among them, all the Underwritten
Securities. If the remaining Underwriters or other underwriters satisfactory to
the Representative do not elect to purchase the Underwritten Securities which
the defaulting Underwriter or Underwriters agreed but failed to purchase, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter, or the Company, except that the Company will continue to be liable
for the payment of expenses as set forth in Paragraph 3(h) hereof.
Nothing contained in this Paragraph 8 shall relieve a defaulting
Underwriter of any liability it may have to the Company for damages caused by
its default. If other Underwriters are obligated or agree to purchase the
Underwritten Securities of a defaulting or withdrawing Underwriter, either the
Representative or the Company may postpone the Closing Date for up to seven full
business days in order to effect any changes that in the opinion of the Company
or the Representative may be necessary in the Registration Statement, the
Prospectus or in any other document or arrangement.
9. Notices. The Company shall be entitled to act and rely upon any request,
consent, notice or agreement by, or on behalf of, the Representative. Any notice
by the Company to the Underwriters shall be sufficient if given in writing or by
facsimile transmission confirmed promptly in writing addressed to the
Representative at its address set forth in Schedule II hereto, and any notice by
the Underwriters to the Company shall be sufficient if given in writing or by
facsimile transmission confirmed promptly in writing addressed to the Company at
SBC Communications Inc., 175 E.
19
<PAGE>
Houston Street, 7th Floor, San Antonio, Texas 78205-2233, Telecopy Number: (210)
351-3849, Attention of the Senior Vice President, Treasurer, and Chief Financial
Officer with a copy to the Senior Executive Vice President and General Counsel,
SBC Communications Inc., 175 E. Houston Street, 13th Floor, San Antonio, Texas
78205-2233, Telecopy Number: (210) 351-2298.
10. Successors and Assigns. This Agreement shall be binding upon the
Underwriters, the Company and their respective successors. This Agreement and
the terms and provisions hereof are for the sole benefit of only those persons,
except that (a) the representations, warranties, indemnities and agreements of
the Company contained in this Agreement shall also be deemed to be for the
benefit of the person or persons, if any, who control any Underwriter within the
meaning of Section 15 of the Securities Act, and (b) the indemnity agreement of
the Underwriters contained in Paragraph 5 hereof shall be deemed to be for the
benefit of directors of the Company, officers of the Company who have signed the
Registration Statement and any person controlling the Company. Nothing in this
Agreement is intended or shall be construed to give any person, other than the
persons referred to in this Paragraph 10, any legal or equitable right, remedy
or claim under or in respect of this Agreement or any provision contained
herein.
11. Representation of Underwriters. The Representative will act for the
several Underwriters in connection with the financing described in this
Agreement, and any action under this Agreement taken by the Representative will
be binding upon all the Underwriters.
12. Business Day. For purposes of this Agreement, "business day" means any
day on which the New York Stock Exchange, Inc. is open for trading.
13. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original, but all such
counterparts shall together constitute one and the same instrument.
14. APPLICABLE LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK, WITHOUT REGARD TO PRINCIPLES
OF CONFLICTS OF LAWS.
20
<PAGE>
If the foregoing is in accordance with your understanding of our agreement,
please sign and return to us the enclosed duplicate hereof, whereupon this
Agreement shall represent a binding agreement between the Company and the
several Underwriters.
Very truly yours,
SBC COMMUNICATIONS INC.
By................................
[Insert title]
The foregoing Agreement is hereby
confirmed and accepted as of the date first
above written.
[NAME OF REPRESENTATIVE]
By............................
[Insert title]
[For itself and as Representative of
the several Underwriters named in
Schedule II to the foregoing
Agreement.]
21
<PAGE>
SCHEDULE I
UNDERWRITING AGREEMENT dated ______________, 200_.
REGISTRATION STATEMENT NO. 333-______
REPRESENTATIVE[S] AND ADDRESS(ES):
UNDERWRITTEN SECURITIES:
TITLE:
NUMBER OF SHARES:
DIVIDEND RATE:
OPTIONAL REDEMPTION:
SINKING FUND:
LISTING: [None.] [ Stock Exchange.] [The Nasdaq Stock Market.]
DELAYED DELIVERY CONTRACTS: [None.]
PURCHASE PRICE: $ per share plus accrued dividends, if any, from , 200 ].
EXPECTED REOFFERING PRICE: $ per share, subject to change by the
[Representative[s]] [Underwriters].
CLOSING: A.M. on , 200 , at , in New York Clearing House (next day) funds.
[UNDERWRITER[S'][`S] COMPENSATION: $ payable to the [Representative[s] for
the proportionate accounts of the] Underwriter[s] on the Closing Date.]
BLACKOUT: Until days after the Closing Date.
22
<PAGE>
The respective numbers of shares of the Underwritten Securities to be
purchased by each of the Underwriters are set forth opposite their names in
Schedule A hereto.
The Underwritten Securities will be made available for checking and
packaging at the office of at least 24 hours prior to the Closing Date.
23
<PAGE>
SCHEDULE A
UNDERWRITER NUMBER OF
SHARES
..........................................................
------------
Total
.......................................................... ============
24
<PAGE>
SCHEDULE II
NAME OF UNDERWRITER PRINCIPAL
AMOUNT
----------
........................................................... $
-------------
Total .......................................... $
=============
25
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)
<PAGE>
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
3
<PAGE>
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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<PAGE>
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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<PAGE>
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
6
<PAGE>
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.
7
<PAGE>
(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
8
<PAGE>
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 Sullivan &
Cromwell, 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
9
<PAGE>
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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<PAGE>
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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<PAGE>
(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 Sullivan & Cromwell,
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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<PAGE>
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.
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<PAGE>
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
<PAGE>
(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
<PAGE>
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
<PAGE>
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
<PAGE>
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., 175 E. Houston Street, 7th Floor, San
Antonio, Texas 78205-2233, Telecopy Number: (210) 351-3849, Attention of the
Senior Vice President, Treasurer, and Chief Financial Officer with a copy to the
Senior Executive Vice President and General Counsel, SBC Communications Inc.,
175 E. Houston Street, 13th Floor, San Antonio, Texas 78205-2233, Telecopy
Number: (210) 351-2298.
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
<PAGE>
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
<PAGE>
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
<PAGE>
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.
<PAGE>
SCHEDULE A
NUMBER OF
UNDERWRITER SHARES
----------- ---------
..............................................................
-------------
Total........................................................
=============
<PAGE>
SCHEDULE II
PRINCIPAL
NAME OF UNDERWRITER AMOUNT
------------------- ---------
................................................................ $
---------
Total............................................. $
=========
EXHIBIT 4-d
[Form of Deposit Agreement]
SBC COMMUNICATIONS INC.,
[NAME OF DEPOSITARY BANK], as Depositary,
and
THE HOLDERS FROM TIME TO TIME OF
THE DEPOSITARY RECEIPTS DESCRIBED HEREIN
Deposit Agreement
relating to [insert designation]
Preferred Stock of SBC Communications Inc.
Dated as of ,
<PAGE>
TABLE OF CONTENTS
Page
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PARTIES.......................................................................1
RECITALS......................................................................1
Article I
Definitions
Certificate...................................................................2
Company.......................................................................2
Depositary....................................................................2
Depositary's Agent............................................................2
Depositary Shares.............................................................2
Depositary's Office...........................................................2
Preferred Stock...............................................................2
Receipt.......................................................................2
Record holder.................................................................3
Registrar.....................................................................3
Stock.........................................................................3
Article II
Form of Receipts, Deposit of Preferred Stock, Execution and
Delivery, Transfer, Surrender and Redemption of Receipts
SECTION 2.01. Form and Transfer of Receipts.................................3
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of
Receipts in Respect Thereof...................................4
SECTION 2.03. Redemption of Preferred Stock.................................5
SECTION 2.04. Registration of Transfer of Receipt...........................6
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Preferred Stock....................6
SECTION 2.06. [Conversion and Exchange of Preferred Stock...................7
SECTION 2.07. Limitations on Execution and Delivery, Transfer, Surrender
and Exchange of Receipts......................................7
SECTION 2.08. Lost Receipts, etc............................................8
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts..........8
Article III
Certain Obligations of Holders
of Receipts and the Company
SECTION 3.01. Filing Proofs, Certificates and Other Information.............8
SECTION 3.02. Payment of Taxes or Other Governmental Charges................8
SECTION 3.03. Warranty as to Preferred Stock................................9
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Page
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Article IV
The Deposited Securities; Notices
SECTION 4.01. Cash Distributions............................................9
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges....................................................9
SECTION 4.03. Subscription Rights, Preferences or Privileges...............10
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts..........................................11
SECTION 4.05. Voting Rights................................................11
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc....................11
SECTION 4.07. Inspection of Reports........................................12
SECTION 4.08. Lists of Receipt Holders.....................................12
SECTION 4.09. Tax and Regulatory Compliance................................12
SECTION 4.10. Withholding..................................................12
Article V
The Depositary, the Depositary's Agents,
the Registrar and the Company
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books by
the Depositary; Registrar....................................13
SECTION 5.02. Prevention of or Delay in Performance by the Depositary,
the Depositary's Agents, the Registrar or the Company........13
SECTION 5.03. Obligations of the Depositary, the Depositary's Agents,
the Registrar and the Company................................14
SECTION 5.04. Resignation and Removal of the Depositary; Appointment
of Successor Depositary......................................14
SECTION 5.05. Corporate Notices and Reports................................15
SECTION 5.06. Indemnification by the Company...............................15
SECTION 5.07. Charges and Expenses.........................................16
Article VI
Amendment and Termination
SECTION 6.01. Amendment....................................................16
SECTION 6.02. Termination..................................................16
Article VII
Miscellaneous
SECTION 7.01. Counterparts.................................................17
SECTION 7.02. Exclusive Benefit of Parties.................................17
SECTION 7.03. Invalidity of Provisions.....................................17
SECTION 7.04. Notices......................................................17
SECTION 7.05. Depositary's Agents..........................................18
SECTION 7.06. Holders of Receipts Are Parties..............................18
SECTION 7.07. Governing Law................................................18
SECTION 7.08. Inspection of Agreement......................................18
SECTION 7.09. Headings.....................................................18
TESTIMONIUM..................................................................17
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<PAGE>
Page
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SIGNATURES...................................................................17
EXHIBIT A: Form of Depositary Receipt
-iii-
<PAGE>
DEPOSIT AGREEMENT dated as of , , among SBC Communications Inc., a
Delaware corporation (the "Company"), [NAME OF DEPOSITARY BANK], a , as
depositary (the "Depositary"), and the holders from time to time of the Receipts
described herein.
WHEREAS, it is desired to provide, as hereinafter set forth in this
Agreement, for the deposit of [insert designation of preferred shares], $1.00
par value (the "Preferred Stock"), of the Company with the Depository for the
purposes set forth in this Agreement and for the issuance hereunder of Receipts
(as defined below) evidencing Depositary Shares (as defined below) in respect of
the Preferred Stock so deposited; and
WHEREAS, the Receipts are to be substantially in the form of Exhibit A
hereto, with appropriate insertions, modifications and omissions, as hereinafter
provided in this Agreement;
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
DEFINITIONS
The following definitions shall for all purposes, unless otherwise
indicated or the context otherwise, apply to the respective terms used in this
Agreement:
"Certificate" shall mean the statement filed with the Secretary of
State of the State of Delaware establishing the Preferred Stock as a series of
preferred shares of the Company.
"Company" shall mean SBC Communications Inc., a Delaware corporation,
and its successors.
"Depositary" shall mean __________, a __________, and any successor as
Depositary hereunder.
"Depositary's Agent" shall mean an agent appointed by the Depositary
pursuant to Section 7.05.
"Depositary Shares" shall mean Depositary Shares, each representing
[SPECIFY FRACTION] of a share of Preferred Stock and evidenced by a Receipt.
"Depositary's Office" shall mean the principal office of the depositary
in [LOCATION], at which at any particular time its depositary receipt business
shall be administered.
"Preferred Stock" shall mean __________.
"Receipt" shall mean one of the Depositary Receipts issued hereunder,
whether in definitive or temporary form.
"Record holder" as applied to a Receipt shall mean the person in whose
name a Receipt is registered on the books of the Depositary maintained for such
purpose.
-2-
"Registrar" shall mean any bank or trust company that shall be
appointed to register ownership and transfers of Receipts as herein provided.
"Stock" shall mean shares of the Company's [insert designation of
preferred stock], $1 par value per share.
ARTICLE II
FORM OF RECEIPTS, DEPOSIT OF PREFERRED STOCK,
EXECUTION AND DELIVERY, TRANSFER, SURRENDER AND
REDEMPTION OF RECEIPTS
SECTION 2.01. Form and Transfer of Receipts. Definitive Receipts
shall be engraved or printed or lithographed on steel-engraved borders and shall
be substantially in the form set forth in Exhibit A hereto, with appropriate
insertions, modifications and omissions, as hereinafter provided. Pending the
preparation of definitive Receipts, the Depositary, upon the written order of
the Company or any holder of Preferred Stock, as the case may be, delivered for
deposit in compliance with Section 2.02, shall execute and deliver temporary
Receipts which are printed, lithographed, typewritten, mimeographed or otherwise
substantially of the tenor of the definitive Receipts in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the persons executing such Receipts may determine, as evidenced by
their execution of such Receipts. If temporary Receipts are issued, the Company
and the Depositary will cause definitive Receipts to be prepared without
unreasonable delay. After the preparation of definitive Receipts, the temporary
Receipts shall be exchangeable for definitive Receipts upon surrender of the
temporary Receipts at an office described in the second to last paragraph of
Section 2.02, without charge to the holder. Upon surrender for cancellation of
any one or more temporary Receipts, the Depositary shall execute and deliver in
exchange therefor definitive Receipts representing the same number of Depositary
Shares as represented by the surrendered temporary Receipt or Receipts. Such
exchange shall be made at the Company's expense and without any charge therefor.
Until so exchanged, the temporary Receipts shall in all respects be entitled to
the same benefits under this Agreement, and with respect to the Preferred Stock
deposited hereunder, as definitive Receipts.
Receipts shall be executed by the Depositary by the manual signature of
a duly authorized officer of the Depositary; provided, however, that such
signature may be a facsimile if a Registrar for the Receipts (other than the
Depositary) shall have been appointed and such Receipts are countersigned by
manual signature of a duly authorized officer of the Registrar. No Receipt shall
be entitled to any benefits under this Agreement or be valid or obligatory for
any purpose unless it shall have been executed manually by a duly authorized
officer of the Depositary or, if a Registrar for the Receipts (other than the
Depositary) shall have been appointed, by manual or facsimile signature of a
duly authorized officer of the Depositary and countersigned manually by a duly
authorized officer of such Registrar. The Depositary shall record on its books
each Receipt so signed and delivered as hereinafter provided.
Except as the Depositary may otherwise determine, Receipts shall be in
denominations of any number of whole Depositary Shares.
Receipts may be endorsed with or have incorporated in the text thereof
such legends or recitals or changes not inconsistent with the provisions of this
Agreement as may be required by the Depositary or required to comply with any
applicable law or any regulation
-3-
<PAGE>
thereunder or with the rules and regulations of any securities exchange upon
which the Preferred Stock, the Depositary Shares or the Receipts may be listed
or to conform with any usage with respect thereto, or to indicate any special
limitations or restrictions to which any particular Receipts are subject.
Title to Depositary Shares evidenced by a Receipt that is properly
endorsed, or accompanied by a properly executed instrument of transfer, shall be
transferable by delivery with the same effect as in the case of a negotiable
instrument; provided, however, that until transfer of a Receipt shall be
registered on the books of the Depositary as provided in Section 2.04, the
Depositary may, notwithstanding any notice to the contrary, treat the record
holder thereof at such time as the absolute owner thereof for the purpose of
determining the person entitled to distributions of dividends or other
distributions or to any notice provided for in this Agreement and for all other
purposes.
SECTION 2.02. Deposit of Preferred Stock; Execution and Delivery of
Receipts in Respect Thereof. Subject to the terms and conditions of this
Agreement, the Company or any holder of Preferred Stock may from time to time
deposit shares of Preferred Stock under this Agreement by delivery to the
Depositary of (i) a certificate or certificates for the shares of Preferred
Stock to be deposited, properly endorsed or accompanied, if required by the
Depositary, by a duly executed instrument of transfer or endorsement, in form
satisfactory to the Depositary, (ii) all certifications as may be required by
the Depositary in accordance with the provisions of this Agreement, and (iii) a
written order of the Company or such holder, as the case may be, directing the
Depositary to execute and deliver to, or upon the written order of, the person
or persons stated in such order a Receipt or Receipts for the number of
Depositary Shares representing such deposited shares of Preferred Stock.
Upon receipt by the Depositary of a certificate or certificates for the
shares of Preferred Stock deposited in accordance with the provisions of this
Section, together with the other documents required, and upon registration of
such shares of Preferred Stock on the books of the Company in the name of the
Depositary or its nominee, the Depositary, subject to the terms and conditions
of this Agreement, shall execute and deliver, to or upon the order of the person
or persons named in the written order delivered to the Depositary referred to in
the first paragraph of this Section, a Receipt or Receipts for the number of
Depositary Shares representing such shares of Preferred Stock and registered in
such name or names as may be requested by such person or persons.
Certificates in the name of the Depositary for the deposited shares of
Preferred Stock shall be held by the Depositary at the Depositary's Office or at
such other place or places as the Depositary shall determine.
The Depositary shall execute and deliver such Receipt or Receipts at
the Depositary's Office or such other offices, if any, as the Depositary may
designate. Delivery at other offices shall be at the risk and expense of the
person requesting such delivery.
Other than in the case of splits, combinations or other
reclassifications affecting the Preferred Stock, or in the case of dividends or
other distributions of Preferred Stock, if any, there shall be deposited
hereunder not more than [NUMBER] shares of Preferred Stock.
SECTION 2.03. Redemption of Preferred Stock. Whenever the Company
shall elect to redeem shares of Preferred Stock deposited hereunder in
accordance with the provisions of the Certificate, if the Certificate provides
for such redemption, it shall (unless otherwise agreed
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in writing with the Depositary) give the Depositary not less than 40 nor more
than 70 days' notice of the date of such proposed redemption of the Preferred
Stock, which notice shall be accompanied by a certificate from the Company
stating that such redemption of the Preferred Stock is in accordance with the
provisions of the Certificate. Such notice, if given more than 60 days prior to
the redemption date, shall be in addition to the notice required to be given for
redemption pursuant to the Certificate. On the date of such redemption, provided
that the Company shall then have paid in full to the Depositary the redemption
price of any deposited shares of Preferred Stock to be redeemed, plus any
accrued and unpaid dividends thereon, the Depositary shall redeem the number of
Depositary Shares representing such shares of Preferred Stock. The Depositary
shall mail notice of such redemption and the proposed simultaneous redemption of
the number of Depositary Shares representing the deposited shares of Preferred
Stock to be redeemed, first-class postage prepaid, not less than 30 and not more
than 60 days prior to the date fixed for redemption of such Preferred Stock and
Depositary Shares (the "Redemption Date"), to the record holders of the Receipts
evidencing the Depositary Shares to be so redeemed, at the addresses of such
holders as they appear on the records of the Depositary; but neither failure to
mail any such notice to one or more such holders nor any defect in any notice to
one or more such holders shall affect the sufficiency of the proceedings for
redemption as to other holders. Each such notice shall state: (i) the Redemption
Date; (ii) the number of Depositary Shares to be redeemed and, if less than all
the Depository Shares held by any such holder are to be redeemed, the number of
such Depositary Shares held by such holder to be so redeemed; (iii) the
redemption price; (iv) the place or places where Receipts evidencing Depositary
Shares are to be surrendered for payment of the redemption price; and (v) that
dividends in respect of the shares of Preferred Stock represented by the
Depositary Shares to be redeemed will cease to accumulate and that conversion
rights, if any, in respect thereof will terminate at the close of business on
such Redemption Date. In case less than all the outstanding Depositary Shares
are to be redeemed, the Depositary Shares to be so redeemed shall be selected by
lot or pro rata as may be determined by the Depositary to be equitable.
Notice having been mailed by the Depositary as aforesaid, from and
after the Redemption Date (unless the Company shall have failed to redeem the
deposited shares of Preferred Stock to be redeemed by it as set forth in the
Company's notice provided for in the preceding paragraph) all dividends in
respect of the deposited shares of Preferred Stock so called for redemption
shall cease to accumulate, the Depositary Shares being redeemed from such
proceeds shall be deemed no longer to be outstanding, all rights of the holders
of Receipts evidencing such Depositary Shares (except the right to receive the
redemption price) shall, to the extent of such Depositary Shares cease and
terminate and, upon surrender in accordance with such notice of the Receipts
evidencing any such Depositary Shares (properly endorsed or assigned for
transfer, if the Depositary shall so require), such Depositary Shares shall be
redeemed by the Depositary at a redemption price per Depositary Share equal to
[SPECIFY FRACTION] of the redemption price per share paid in respect of the
redeemed deposited shares of Preferred Stock plus all money and other property,
if any, represented by such Depositary Shares, including all amounts paid by the
Company in respect of dividends which on the Redemption Date have accumulated on
the shares of Preferred Stock to be so redeemed and have not theretofore been
paid.
If less than all the Depositary Shares evidenced by a single Receipt
are called for redemption, the Depositary will deliver to the holder of such
Receipt upon its surrender to the Depositary a new Receipt evidencing the
Depositary Shares evidenced by such prior Receipt and not called for redemption,
together with the redemption payment.
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SECTION 2.04. Registration of Transfer of Receipt. Subject to the
terms and conditions of this Agreement, the Depositary shall register on its
books from time to time transfers of Receipts upon any surrender thereof by the
holder in person or by duly authorized attorney, properly endorsed or
accompanied by a properly executed instrument of transfer. Thereupon the
Depositary shall execute a new Receipt or Receipts evidencing the same aggregate
number of Depositary Shares as those evidenced by the Receipt or Receipts
surrendered and deliver such new Receipt or Receipts to or upon the order of the
person entitled thereto.
SECTION 2.05. Split-ups and Combinations of Receipts; Surrender of
Receipts and Withdrawal of Preferred Stock. Upon surrender of a Receipt or
Receipts at the Depositary's Office or at such other offices as it may designate
for the purpose of effecting a split-up or combination of such Receipt or
Receipts, and subject to the terms and conditions of this Agreement, the
Depositary shall execute and deliver a new Receipt or Receipts in the authorized
denomination or denominations requested, evidencing the aggregate number of
Depositary Shares evidenced by the Receipt or Receipts surrendered.
Any holder of a Receipt or Receipts representing a whole number of
deposited shares of Preferred Stock may withdraw such shares of Preferred Stock
and all money and other property, if any, represented thereby by surrendering
such Receipt or Receipts at the Depositary's Office or at such other offices as
the Depositary may designate for such withdrawals. Thereafter, without
unreasonable delay, the Depositary shall deliver to such holder, or to the
person or persons designated by such holder as hereinafter provided the number
of shares of Preferred Stock and all money and other property, if any,
represented by the Receipt or Receipts so surrendered for withdrawal, but
holders of such shares of Preferred Stock will not thereafter be entitled to
deposit such shares of Preferred Stock hereunder or to receive Depositary Shares
therefor. If a Receipt delivered by the holder to the Depositary in connection
with such withdrawal shall evidence a number of Depositary Shares in excess of
the number of deposited Depositary Shares representing the number of shares of
Preferred Stock to be so withdrawn, the Depositary shall at the same time, in
addition to such number of shares of Preferred Stock and such money and other
property, if any, to be so withdrawn, deliver to such holder, or (subject to
Section 2.03) upon his order, a new Receipt evidencing such excess number of
Depositary Shares. Delivery of the shares of Preferred Stock and money and other
property being withdrawn may be made by the delivery of such certificates,
documents of title and other instruments as the Depositary may deem appropriate.
If the shares of Preferred Stock and the money and other property, if
any, being withdrawn are to be delivered to a person or persons other than the
record holder of the Receipt or Receipts being surrendered for withdrawal of the
Preferred Stock, such holder shall execute and deliver to the Depositary a
written order so directing the Depositary and the Depositary may require that
the Receipt or Receipts surrendered by such holder for withdrawal of such shares
of Preferred Stock be appropriately endorsed or accompanied by a properly
executed instrument of transfer.
Delivery of the shares of Preferred Stock and the money and other
property, if any, represented by Receipts surrendered for withdrawal shall be
made by the Depositary at the Depositary's Office, except that, at the request,
risk and expense of the holder surrendering such Receipt or Receipts and for the
account of the holder thereof, such delivery may be made at such other place as
may be designated by such holder.
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SECTION 2.06. [Conversion and Exchange of Preferred Stock. Upon a
conversion or exchange of the Depositary Shares the Depositary shall convert or
exchange all of the Depositary Shares on the day that the related Preferred
Stock is so converted or exchanged. The Company hereby agrees to deposit with
the Depositary the other preferred stock, common stock or other securities into
which the Preferred Stock is to be converted or for which it will be exchanged.
Further, the Company agrees to accept the delivery of Receipts for the purpose
of effecting conversions or exchanges of the Preferred Stock utilizing the
procedures set forth for delivery of certificates for the Preferred Stock
pursuant to Section 2.02 hereof and in accordance with the terms and conditions
of the Preferred Stock as provided in the Certificate. If the Depositary Shares
represented by a Receipt are to be converted or exchanged in part only, a new
Receipt or Receipts will be issued by the Depositary for the Depositary Shares
not to be converted or exchanged. For this purpose, a holder of a Receipt or
Receipts must surrender such Receipt or Receipts to the Company, in care of the
Depositary at its office together with a duly completed and executed notice of
conversion. In all cases the foregoing shall be conditioned upon compliance in
full by the holders with the terms and conditions of the Preferred Stock as
provided in the Certificate and of this Deposit Agreement. The Company and the
Depositary will thereafter effect the cancellation of each Receipt surrendered
for such conversion or exchange and of the related Preferred Stock as provided
in the Certificate and this Deposit Agreement.
Except as further specified in the Certificate, the exchange or
conversion rate per Depositary Share will be equal to (i) the exchange rate or
conversion rate per share of Preferred Stock, multiplied by the fraction of a
share of Preferred Stock represented by one Depositary Share; (ii) plus the
total amount of money and any other property represented by the Depositary
Shares; and (iii) including all amounts paid by the Company for accrued and
unpaid dividends on the Preferred Stock on the exchange or conversion date.]
SECTION 2.07. Limitations on Execution and Delivery, Transfer,
Surrender and Exchange of Receipts. As a condition precedent to the execution
and delivery, registration of transfer, split-up, combination, surrender or
exchange of any Receipt, the Depositary, any of the Depositary's Agents or the
Company may require payment to it of a sum sufficient for the payment (or, in
the event that the Depositary or the Company shall have made such payment, the
reimbursement to it) of any charges or expenses payable by the holder of a
Receipt pursuant to Section 5.07, may require the production of evidence
satisfactory to it as to the identity and genuineness of any signature and may
also require compliance with such regulations, if any, as the Depositary or the
Company may establish consistent with the provisions of this Agreement.
The deposit of shares of Preferred Stock may be reused, the delivery of
Receipts against Preferred Stock may be suspended, the registration of transfer
of Receipts may be refused and the registration of transfer, surrender or
exchange of outstanding Receipts may be suspended (i) during any period when the
register of shareholders of the Company is closed or (ii) if any such action is
deemed necessary or advisable by the Depositary, any of the Depositary's Agents
or the Company at any time or from time to time because of any requirement of
law or of any government or governmental body or commission or under any
provisions of this Agreement.
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SECTION 2.08. Lost Receipts, etc. In case any Receipt shall be
mutilated, destroyed, lost or stolen, the Depositary in its discretion may
execute and deliver a Receipt of like form and tenor in exchange and
substitution for such mutilated Receipt, or in lieu of and in substitution for
such destroyed, lost or stolen Receipt, upon (i) the filing by the holder
thereof with the Depositary of evidence satisfactory to the Depositary of such
destruction or loss or theft of such Receipt, of the authenticity thereof and of
his or her ownership thereof, and (ii) the furnishing of the Depositary with
reasonable indemnification satisfactory to it.
SECTION 2.09. Cancellation and Destruction of Surrendered Receipts.
All Receipts surrendered to the Depositary or any Depositary's Agent shall be
cancelled by the Depositary. Except as prohibited by applicable law or
regulation, the Depositary is authorized to destroy all Receipts so cancelled.
ARTICLE III
CERTAIN OBLIGATIONS OF HOLDERS
OF RECEIPTS AND THE COMPANY
SECTION 3.01. Filing Proofs, Certificates and Other Information.
Any holder of a Receipt may be required from time to time to file such proof of
residence, or other matters or other information, to execute such certificates
and to make such representations and warranties as the Depositary or the Company
may reasonably deem necessary or proper. The Depositary or the Company may
withhold the delivery, or delay the registration of transfer, redemption or
exchange, of any Receipt or the withdrawal of the Shares of Preferred Stock
represented by the Depositary Shares evidenced by any Receipt or the
distribution of any dividend or other distribution or the sale of any rights or
of the proceeds thereof until such proof or other information is filed or such
certificates are executed or such representations and warranties are made.
SECTION 3.02. Payment of Taxes or Other Governmental Charges.
Holders of Receipts shall be obligated to make payments to the Depositary of
certain charges and expenses, as provided in Section 5.07. Registration of
transfer of any Receipt or any withdrawal of shares of Preferred Stock and all
money or other property, if any, represented by the Depositary Shares evidenced
by such Receipt may be refused until any such payment due is made, and any
dividends, interest payments or other distributions may be withheld or any part
of or all the shares of Preferred Stock or other property represented by the
Depositary Shares evidenced by such Receipt and not theretofore sold may be sold
for the account of the holder thereof (after attempting by reasonable means to
notify such holder prior to such sale), and such dividends, interest payments or
other distributions or the proceeds of any such sale may be applied to any
payment of such charges or expenses, the holder of such Receipt remaining liable
for any deficiency.
SECTION 3.03. Warranty as to Preferred Stock. The Company hereby
represents and warrants that the shares of Preferred Stock, when issued, will be
validly issued, fully paid and nonassessable. Such representation and warranty
shall survive the deposit of any shares of Preferred Stock and the issuance of
Receipts.
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ARTICLE IV
THE DEPOSITED SECURITIES; NOTICES
SECTION 4.01. Cash Distributions. Whenever the Depositary shall
receive any cash dividend or other cash distribution on deposited shares of
Preferred Stock, the Depositary shall, subject to Sections 3.01 and 3.02,
distribute to record holders of Receipts on the record date fixed pursuant to
Section 4.04 such amounts of such dividend or distribution as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders; provided, however, that in case
the Company or the Depositary shall be required to withhold and shall withhold
from any cash dividend or other cash distribution in respect of the Preferred
Stock an amount on account of taxes, the amount made available for distribution
or distributed in respect of Depositary Shares shall be reduced accordingly. The
Depositary shall distribute or make available for distribution, as the case may
be, only such amount, however, as can be distributed without attributing to any
holder of Depositary Shares a fraction of one cent, and any balance not so
distributable shall be held by the Depositary (without liability for interest
thereon) and shall be added to and be treated as part of the next sum received
by the Depositary for distribution to record holders of Receipts then
outstanding.
SECTION 4.02. Distributions Other than Cash, Rights, Preferences or
Privileges. Whenever the Depositary shall receive any distribution other than
cash, rights, preferences or privileges upon deposited shares of Preferred
Stock, the Depositary shall, subject to Sections 3.01 and 3.02, distribute to
record holders of Receipts on the record date fixed pursuant to Section 4.04
such amounts of the securities or property received by it as are, as nearly as
practicable, in proportion to the respective numbers of Depositary Shares
evidenced by the Receipts held by such holders, in any manner that the
Depositary may deem equitable and practicable for accomplishing such
distribution. If in the opinion of the Depositary such distribution cannot be
made proportionately among such record holders, or if for any other reason
(including any requirement that the Company or the Depositary withhold an amount
on account of taxes) the Depositary deems, after consultation with the Company,
such distribution not to be feasible, the Depositary may, with the approval of
the Company, adopt such method as it deems equitable and practicable for the
purpose of effecting such distribution, including the sale (at public or private
sale) of the securities or property thus received, or any part thereof, at such
place or places and upon such terms as it may deem proper. The net proceeds of
any such sale shall, subject to Sections 3.01 and 3.02, be distributed or made
available for distribution, as the case may be, by the Depositary to record
holders of Receipts as provided by Section 4.01 in the case of a distribution
received in cash. The Company shall not make any distribution of such securities
unless the Company shall have provided an opinion of counsel stating that such
securities have been registered under the Securities Act of 1933 or do not need
to be registered.
SECTION 4.03. Subscription Rights, Preferences or Privileges. If
the Company shall at any time offer or cause to be offered to the persons in
whose names the shares of Preferred Stock are recorded on the books of the
Company any rights, preferences or privileges to subscribe for or to purchase
any securities or any rights, preferences or privileges of any other nature,
such rights, preferences or privileges shall in each such instance be made
available by the Depositary to the record holders of Receipts in such manner as
the Depositary may determine, either by the issue to such record holders of
warrants representing such rights, preferences or privileges or by such other
method as may be approved by the Depositary in its discretion with the approval
of the Company; provided, however, that (i) if at the time of issue or offer of
any such rights, preferences or privileges
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the Depositary determines that it is not lawful or (after consultation with the
Company) not feasible to make such rights, preferences or privileges available
to holders of Receipts by the issue of warrants or otherwise, or (ii) if and to
the extent so instructed by holders of Receipts who do not desire to exercise
such rights, preferences or privileges, then the Depositary, in its discretion
(with the approval of the Company, in any case where the Depositary has
determined that it is not feasible to make such rights, preferences or
privileges available), may, if applicable laws and the terms of such rights,
preferences or privileges permit such transfer, sell such rights, preferences or
privileges at public or private sale, at such place or places and upon such
terms as it may deem proper. The net proceeds of any such sale shall, subject to
Sections 3.01 and 3.02, be distributed by the Depositary to the record holders
of Receipts entitled thereto as provided by Section 4.01 in the case of a
distribution received in cash. The Company shall not make any distribution of
any such rights, preferences or privilege unless the Company shall have provided
an opinion of counsel stating that such rights, preferences or privileges have
been registered under the Securities Act of 1933 or do not need to be
registered.
If registration under the Securities Act of 1933 of the securities to
which any rights, preferences or privileges relate is required in order for
holders of Receipts to be offered or sold the securities to which such rights,
preferences or privileges relate, the Company agrees with the Depositary that it
will file promptly a registration statement pursuant to such Act with respect to
such rights, preferences or privileges and securities and use its best efforts
and take all steps available to it to cause such registration statement to
become effective sufficiently in advance of the expiration of such rights,
preferences or privileges to enable such holders to exercise such rights,
preferences or privileges. In no event shall the Depositary make available to
the holders of Receipts any right, preference or privilege to subscribe for or
to purchase any securities unless and until such a registration statement shall
have become effective, or unless the offering and sale of such securities to
such holders are exempt from registration under the provisions of such Act.
If any other action under the laws of any jurisdiction or any
governmental or administrative authorization, consent or permit is required in
order for such rights, preferences or privileges to be made available to holders
of Receipts, the Company agrees with the Depositary that the Company will use
its best efforts to take such action or obtain such authorization, consent or
permit sufficiently in advance of the expiration of such rights, preferences or
privileges to enable such holders to exercise such rights, preferences or
privileges.
SECTION 4.04. Notice of Dividends, etc.; Fixing of Record Date for
Holders of Receipts. Whenever any cash dividend or other cash distribution shall
become payable or any distribution other than cash shall be made, or if rights,
preferences or privileges shall at any time be offered, with respect to the
Preferred Stock, or whenever the Depositary shall receive notice of any meeting
at which holders of shares of Preferred Stock are entitled to vote or of which
holders of shares of Preferred Stock are entitled to notice, or whenever the
Depositary and the Company shall decide it is appropriate, the Depositary shall
in each such instance fix a record date (which shall be the same date as the
record date fixed by the Company with respect to the Preferred Stock) for the
determination of the holders of Receipts who shall be entitled to receive such
dividend, distribution, rights, preferences or privileges or the net proceeds of
the sale thereof, or to give instructions for the exercise of voting rights at
any such meeting, or who shall be entitled to notice of such meeting or for any
other appropriate reasons.
SECTION 4.05. Voting Rights. Upon receipt of notice of any meeting
at which the holders of shares of Preferred Stock are entitled to vote, the
Depositary shall, as soon as practicable thereafter, mail to the record holders
of Receipts a notice which shall contain (i) such information as is contained in
such notice of meeting and (ii) a statement that the holders may, subject to any
applicable restrictions, instruct the Depositary as to the exercise of the
voting rights
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pertaining to the number of shares of Preferred Stock represented by their
respective Depositary Shares (including an express indication that instructions
may be given to the Depositary to give a discretionary proxy to a person
designated by the Company) and a brief statement as to the manner in which such
instructions may be given. Upon the written request of the holders of Receipts
on the relevant record date, the Depositary shall endeavor insofar as
practicable to vote or cause to be voted, in accordance with the instructions
set forth in such requests, the maximum whole number of shares of Preferred
Stock represented by the Depositary Shares evidenced by all Receipts as to which
any particular voting instructions are received. The Company hereby agrees to
take all action which may be deemed necessary by the Depositary in order to
enable the Depositary to vote such shares of Preferred Stock or cause such
shares of Preferred Stock to be voted. In the absence of specific instructions
from the holder of a Receipt, the Depositary will abstain from voting (but, at
its discretion, not from appearing at any meeting with respect to such shares of
Preferred Stock unless directed to the contrary by the holders of all the
Receipts) to the extent of the number of shares of Preferred Stock represented
by the Depositary Shares evidenced by such Receipt.
SECTION 4.06. Changes Affecting Deposited Securities and
Reclassifications, Recapitalizations, etc. Upon any change in par or stated
value, split-up, combination or any other reclassification of the Preferred
Stock, or upon any recapitalization, reorganization, merger, amalgamation or
consolidation affecting the Company or to which it is a party, the Depositary
may in its discretion with the approval of, and shall upon the instructions of,
the Company, and (in either case) in such manner as the Depositary may deem
equitable, (i) make such adjustments as are certified by the Company in (x) the
fraction of any interest represented by one Depositary Share in one share of
Preferred Stock, and (y) the ratio of the redemption price per Depositary Share
to the redemption price per share of Preferred Stock, in each case as may be
necessary fully to reflect the effects of such changes in par or stated value,
split-up, combination or other reclassification of the Preferred Stock, or of
such recapitalization, reorganization, merger, amalgamation or consolidation,
and (ii) treat any securities which shall be received by the Depositary in
exchange for or upon conversion of or in respect of deposited shares of
Preferred Stock as new deposited securities so received in exchange for or upon
conversion or in respect of such shares of Preferred Stock. In any such case the
Depositary may in its discretion, with the approval of the Company, execute and
deliver additional Receipts, or may call for the surrender of all outstanding
Receipts to be exchanged for new Receipts specifically describing such new
deposited securities. Anything to the contrary herein notwithstanding, holders
of Receipts shall have the right from and after the effective date of any such
change in par or stated value, split-up, combination or other reclassification
of the Preferred Stock or any such recapitalization, reorganization, merger,
amalgamation or consolidation to surrender such Receipts to the Depositary with
instructions to convert, exchange or surrender the shares of Preferred Stock
represented thereby only into or for, as the case may be, the kind and amount of
shares of Preferred Stock and other securities and property and cash into which
the Preferred Stock represented by such Receipts might have been converted or
for which such Preferred Stock might have been exchanged or surrendered
immediately prior to the effective date of such transaction.
SECTION 4.07. Inspection of Reports. The Depository shall make
available for inspection by holders of Receipts at the Depositary's Office, and
at such other places as it may from time to time deem advisable, any reports and
communications received from the Company which are received by the Depositary as
the holder of Preferred Stock.
SECTION 4.08. Lists of Receipt Holders. Promptly upon request from
time to time by the Company, the Depositary shall furnish to it a list, as of a
recent date, of the names,
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addresses and holdings of Depositary Shares of all persons in whose names
Receipts are registered on the books of the Depositary.
SECTION 4.09. Tax and Regulatory Compliance. The Depositary shall
be responsible for (i) preparation and mailing of form 1099s (or successor
forms) for all open and closed accounts, (ii) foreign tax withholding, (iii)
withholding of tax on dividends payable to eligible holders of Receipts, (iv)
mailing W-9 forms (or successor forms) to new holders of Receipts without a
certified taxpayer identification number, (v) processing certified W-9 forms (or
successor forms), (vi) preparation and filing of state information returns, and
(vii) escheatment services.
SECTION 4.10. Withholding. Notwithstanding any other provision of
this Deposit Agreement, in the event that the Depositary determines that any
distribution in property is subject to any tax that the Depositary is obligated
to withhold, the Depositary may, after consultation with the Company, dispose of
all or a portion of such property in such amounts and in such manner as the
Depositary deems necessary and practicable to pay such taxes, by public or
private sale at such place or places and upon such terms as it shall deem proper
after consultation with the Company, and the Depositary shall distribute the net
proceeds of any such sale or the balance of any such property after deduction of
such taxes to the holders of Receipts entitled thereto in proportion to the
number of Depositary Shares held by them respectively.
ARTICLE V
THE DEPOSITARY, THE DEPOSITARY'S AGENTS,
THE REGISTRAR AND THE COMPANY
SECTION 5.01. Maintenance of Offices, Agencies and Transfer Books
by the Depositary; Registrar. The Depositary shall have its principal office in
the United States of America and shall have a combined capital and surplus of at
least $50,000,000. Upon execution of this Agreement, the Depositary shall
maintain at the Depositary's Office facilities for the execution and delivery,
registration and registration of transfer, surrender and exchange of Receipts,
and at the offices of the Depositary's Agents, if any, facilities for the
delivery, registration of transfer, surrender and exchange of Receipts, all in
accordance with the provisions of this Agreement.
The Depositary shall keep books at the Depositary's Office for the
registration and registration of transfer of Receipts, which books at all
reasonable times shall be open for inspection by the record holders of Receipts;
provided, however, that any such holder requesting to exercise such right shall
certify to the Depositary that such inspection shall be for a proper purpose
reasonably related to such person's interests as an owner of Depositary Shares
evidenced by Receipts.
The Depositary may close such books, at any time or from time to time,
when deemed expedient by it in connection with the performance of its duties
hereunder.
If the Receipts or the Depositary Shares evidenced thereby or the
Preferred Stock represented by such Depositary Shares shall be listed on the New
York Stock Exchange, the Depositary may, with the approval of the Company,
appoint a Registrar for registration of such Receipts or Depositary Shares in
accordance with any requirements of such Exchange. Such Registrar (which may be
the Depositary if so permitted by the requirements of such Exchange)
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may be removed and a substituted registrar appointed by the Depositary upon the
request or with the approval of the Company. If the Receipts, the Depositary
Shares or the Preferred Stock shall be listed on one or more other stock
exchanges, the Depositary will, at the request of the Company, arrange such
facilities for the delivery, registration, registration of transfer, surrender
and exchange of the Receipts, the Depositary Shares or the Preferred Stock as
may be required by law or applicable stock exchange regulation.
SECTION 5.02. Prevention of or Delay in Performance by the
Depositary, the Depositary's Agents, the Registrar or the Company. Neither the
Depositary nor any Depositary's Agent nor any Registrar nor the Company shall
incur any liability to any holder of a Receipt if by reason of any provision of
any present or future law, or regulation thereunder, of the United States of
America or of any other governmental authority or, in the case of the
Depositary, the Depositary's Agent or the Registrar, by reason of any provision,
present or future, of the Company's Articles of Incorporation (including the
Certificate) or by reason of any act of God or war or other circumstance beyond
the control of the relevant party, the Depositary, the Depositary's Agent, the
Registrar or the Company shall be prevented or forbidden from, or subjected to
any penalty on account of, doing or performing any act or thing which the terms
of this Agreement provide shall be done or performed; nor shall the Depositary,
any Depositary's Agent, any Registrar or the Company incur any liability to any
holder of a Receipt (i) by reason of any nonperformance or delay, caused as
aforesaid, in the performance of any act or thing which the terms of this
Deposit Agreement provide shall or may be done or performed or (ii) by reason of
any exercise of, or failure to exercise, any discretion provided for in this
Agreement except, in case of any such exercise or failure to exercise discretion
not caused as aforesaid, if caused by the negligence or willful misconduct of
the party charged with such exercise or failure to exercise.
SECTION 5.03. Obligations of the Depositary, the Depositary's
Agents, the Registrar and the Company. Neither the Depositary nor any
Depositary's Agent nor any Registrar nor the Company assumes any obligation or
shall be subject to any liability under this Agreement to holders of Receipts
other than for its negligence or willful misconduct.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be under any obligation under this Agreement to appear in,
prosecute or defend any action, suit or other proceeding in respect of deposited
shares of Preferred Stock, the Depositary Shares or the Receipts that in its
opinion may involve it in expense or liability unless indemnity satisfactory to
it against all expense and liability be furnished as often as may be required.
Neither the Depositary nor any Depositary's Agent nor any Registrar nor
the Company shall be liable for any action or any failure to act by it in
reliance upon the written advice of legal counsel or accountants, or information
from any person presenting shares of Preferred Stock for deposit, any holder of
a Receipt or any other person believed by it in good faith to be competent to
give such information. The Depositary, any Depositary's Agent, any Registrar and
the Company may each rely and shall each be protected in acting upon any written
notice, request, direction or other document believed by it to be genuine and to
have been signed or presented by the proper party or parties.
Notwithstanding the first paragraph of this Section, the Depositary
shall not be responsible for any failure to carry out any instruction to vote
any of the deposited shares of Preferred Stock or for the manner or effect of
any such vote made, as long as any such action or nonaction is in good faith or
in accordance with this Agreement. The Depositary undertakes, and
-13-
<PAGE>
any Registrar shall be required to undertake, to perform such duties and only
such duties as are specifically set forth in this Deposit Agreement, and no
implied covenants or obligations shall be read into this Deposit Agreement
against the Depositary or any Registrar. The Depositary will indemnify the
Company against any liability that may arise out of acts performed or omitted by
the Depositary or its agents due to its or their negligence or bad faith. The
Depositary, the Depositary's Agents and any Registrar may own and deal in any
class of securities of the Company and its affiliates and Receipts. The
Depositary may also act as transfer agent or registrar of any of the securities
of the Company and its affiliates.
SECTION 5.04. Resignation and Removal of the Depositary;
Appointment of Successor Depositary. The Depositary may at any time resign as
Depositary hereunder by notice of its election to do so delivered to the
Company, such resignation to take effect upon the appointment of a successor
Depositary and its acceptance of such appointment as hereinafter provided.
The Depository may at any time be removed by the Company by notice of
such removal delivered to the Depositary, such removal to take effect upon the
appointment of a successor Depositary and its acceptance of such appointment as
hereinafter provided.
In case at any time the Depositary acting hereunder shall resign or be
removed, the Company shall, within 60 days after the delivery of the notice of
resignation or removal, as the case may be, appoint a successor Depositary,
which shall be a bank or trust company having its principal office in the United
States of America and having a combined capital and surplus of at least
$50,000,000. If no successor Depositary shall have been so appointed and have
accepted appointment within 60 days after delivery of such notice, the resigning
or removed Depositary may petition any court of competent jurisdiction for the
appointment of a successor Depositary. Every successor Depositary shall execute
and deliver to its predecessor and to the Company an instrument in writing
accepting its appointment hereunder, and thereupon such successor Depositary,
without any further act or deed, shall become fully vested with all the rights,
powers, duties and obligations of its predecessor and for all purposes shall be
the Depositary under this Agreement, and such predecessor, upon payment of all
sums due it and on the written request of the Company, shall execute and deliver
an instrument transferring to such successor all rights and powers of such
predecessor hereunder, shall duly assign, transfer and deliver all right, title
and interest in the Preferred Stock and any moneys or property held hereunder to
such successor, and shall deliver to such successor a list of the record holders
of all outstanding Receipts. Any successor Depositary shall promptly mail notice
of its appointment to the record holders of Receipts.
Any corporation into or with which the Depositary may be merged,
consolidated or converted shall be the successor of such Depositary without the
execution or filing of any document or any further act, and notice thereof shall
not be required hereunder. Such successor Depositary may authenticate the
Receipts in the name of the predecessor Depositary or in the name of the
successor Depositary.
-14-
<PAGE>
SECTION 5.05. Corporate Notices and Reports. The Company agrees
that it will transmit to the record holders of Receipts, in each case at the
addresses furnished to it pursuant to Section 4.08, all notices and reports
(including without limitation financial statements) required by law, by the
rules of any national securities exchange upon which the Preferred Stock, the
Depositary Shares or the Receipts are listed or by the Company's Articles of
Incorporation (including the Certificate) to be furnished by the Company to
holders of shares of Preferred Stock. Such transmission will be at the Company's
expense.
SECTION 5.06. Indemnification by the Company. The Company shall
indemnify the Depositary, any Depositary's Agent and any Registrar against, and
hold each of them harmless from, any loss, liability or expense (including the
costs and expenses of defending itself) that may arise out of (i) acts performed
or omitted in connection with this Deposit Agreement and the Receipts (a) by the
Depositary, any Registrar or any of their respective agents (including any
Depositary's Agent), except for any liability arising out of negligence or bad
faith on the respective parts of any such person or persons, or (b) by the
Company or any of its agents, or (ii) the offer, sale or registration of the
Receipts or the Preferred Stock pursuant to the provisions hereof. The
obligations of the Company set forth in this Section 5.06 shall survive any
succession of any Depositary, Registrar or Depositary's Agent.
SECTION 5.07. Charges and Expenses. The Company shall pay all
transfer and other taxes and governmental charges in connection with the
existence of the depositary arrangements. The Company shall pay all charges of
the Depositary in connection with the initial deposit of the Preferred Stock and
the initial issuance of the Depositary Shares and redemption of the Preferred
Stock at the option of the Company. All other transfer and other taxes and
governmental charges shall be at the expense of holders of Depositary Shares.
If, at the request of a holder of Receipts, the Depositary incurs charges or
expenses for which it is not otherwise liable hereunder, such holder will be
liable for such charges and expenses. All other charges and expenses of the
Depositary and any Depositary's Agent hereunder and of any Registrar (including,
in each case, fees and expenses of counsel) incident to the performance of their
respective obligations hereunder will be paid upon consultation and agreement
between the Depositary and the Company as to the amount and nature of such
charges and expenses. The Depositary shall present its statement for charges and
expenses to the Company once every three months or at such other intervals as
the Company and the Depositary may agree.
ARTICLE VI
AMENDMENT AND TERMINATION
SECTION 6.01. Amendment. The form of the Receipts and any
provisions of this Agreement may at any time and from time to time be amended by
agreement between the Company and the Depositary in any respect which they may
deem necessary or desirable; provided, however, that no such amendment that
shall materially and adversely alter the rights of the holders of Receipts shall
be effective unless such amendment shall have been approved by the holders of at
least a majority of the Depositary Shares then outstanding. Every holder of an
outstanding Receipt at the time any such amendment becomes effective shall be
deemed, by continuing to hold such Receipt, to consent and agree to such
amendment and to be bound by this Agreement as amended thereby.
SECTION 6.02. Termination. This Agreement may be terminated by the
Company or the Depositary only after (i) all outstanding Depositary Shares shall
have been
-15-
<PAGE>
redeemed pursuant to Section 2.03; (ii) there shall have been made a final
distribution in respect of the Preferred Stock in connection with any
liquidation, dissolution or winding up of the Company and such distribution
shall have been distributed to the holders of Depositary Shares pursuant to
Section 4.01 or Section 4.02, as applicable; (iii) all outstanding Depositary
Shares shall have been converted into or exchanged for other securities; and
(iv) upon determination by the Company to terminate this Agreement. In the case
of a termination pursuant to (iv) above, the Depositary shall give notice or
termination to the holders of Depositary Shares not less than 30 days before the
termination date; and further, every holder shall upon surrender of its
Depositary Receipts to the Depositary be entitled to receive from the Depositary
the number of whole or fractional shares of the series of Preferred Stock that
such Depositary Receipts relate to.
Upon the termination of this Agreement, the Company shall be discharged
from all obligations under this Deposit Agreement except for its obligations to
the Depositary, any Depositary's Agent and any Registrar under Sections 5.06 and
5.07. The Depositary's indemnity under Section 5.03 shall survive the
termination of this Agreement and the resignation or removal of such Depositary.
ARTICLE VII
MISCELLANEOUS
SECTION 7.01. Counterparts. This Agreement may be executed in any
number of counterparts, and by each of the parties hereto on separate
counterparts, each of which counterparts, when so executed and delivered, shall
be deemed an original, but all such counterparts taken together shall constitute
one and the same instrument.
SECTION 7.02. Exclusive Benefit of Parties. This Agreement is for the
exclusive benefit of the parties hereto, and their respective successors
hereunder, and shall not be deemed to give any legal or equitable right, remedy
or claim to any other person whatsoever.
SECTION 7.03. Invalidity of Provisions. In case any one or more of
the provisions contained in this Agreement or in the Receipts should be or
become invalid, illegal or unenforceable in any respect, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
in no way be affected, prejudiced or disturbed thereby.
SECTION 7.04. Notices. Any and all notices to be given to the
Company hereunder or under the Receipts shall be in writing and shall be deemed
to have been duly given if personally delivered or sent by mail or by telegram
or telex confirmed by letter, addressed to the Company at 175 E. Houston Street,
San Antonio, Texas 78205 to the attention of the Secretary, or at any other
address of which the Company shall have notified the Depositary in writing.
Any and all notices to be given to the Depositary hereunder or under
the Receipts shall be in writing and shall be deemed to have been duly given if
personally delivered or sent by mail or by telegram or telex confirmed by
letter, addressed to the Depositary at the Depositary's Office, at [ADDRESS OF
DEPOSITARY], or at any other address of which the Depositary shall have notified
the Company in writing.
Any and all notices to be given to any record holder of a Receipt
hereunder or under the Receipts shall be in writing and shall be deemed to have
been duly given if personally
-16-
<PAGE>
delivered or sent by mail or by telegram or telex confirmed by letter, addressed
to such record holder at the address of such record holder as it appears on the
books of the Depositary, or if such holder shall have filed with the Depositary
a written request that notices intended for such holder be mailed to some other
address, at the address designated in such request.
Delivery of a notice sent by mail or by telegram or telex shall be
deemed to be effected at the time when a duly addressed letter containing the
same (or a confirmation thereof in the case of a telegram or telex message) is
deposited, postage prepaid, in a post office letter box. The Depositary or the
Company may, however, act upon any telegram or telex message received by it from
the other or from any holder of a Receipt, notwithstanding that such telegram or
telex message shall not subsequently be confirmed by letter or as aforesaid.
SECTION 7.05. Depositary's Agents. The Depositary may from time to
time appoint Depositary's Agents to act in any respect for the Depositary for
the purposes of this Agreement and may at any time appoint additional
Depositary's Agents and vary or terminate the appointment of such Depositary's
Agents. The Depositary will notify the Company of any such action.
SECTION 7.06. Holders of Receipts Are Parties. The holders of
Receipts from time to time shall be parties to this Agreement and shall be bound
by all of the terms and conditions hereof and of the Receipts by acceptance of
delivery thereof.
SECTION 7.07. Governing Law. This Agreement and the Receipts and
all rights hereunder and thereunder and provisions hereof and thereof shall be
governed by, and construed in accordance with, the laws of the State of
Delaware.
SECTION 7.08. Inspection of Agreement. Copies of this Agreement
shall be filed with the Depositary and the Depositary's Agents and shall be open
to inspection during business hours at the Depositary's Office and the
respective offices of the Depositary's Agents, if any, by an holder of a
Receipt.
SECTION 7.09. Headings. The headings of articles and sections in
this Agreement and in the form of the Receipt set forth in Exhibit A hereto have
been inserted for convenience only and are not to be regarded as a part of this
Agreement or the Receipts or have any bearing upon the meaning or interpretation
of any provision contained herein or in the Receipts.
-17-
<PAGE>
IN WITNESS WHEREOF, the Company and the Depositary have duly executed
this Agreement as of the day and year first above set forth, and all holders of
Receipts shall become parties hereto by and upon acceptance by them of delivery
of Receipts issued in accordance with the terms hereof.
SBC COMMUNICATIONS INC.
Attested by By
-------------------
- -------------------
[SEAL]
[NAME OF DEPOSITARY], as
Depositary
Attested by By
-------------------
- -------------------
[SEAL]
-18-
<PAGE>
EXHIBIT A
[FORM OF DEPOSITARY RECEIPT]
CERTIFICATE FOR NOT MORE THAN ______________________DEPOSITARY SHARES
DEPOSITARY RECEIPT FOR DEPOSITARY SHARES,
REPRESENTING PREFERRED STOCK, SERIES ___ OF
SBC COMMUNICATIONS INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
Serial Number _______ Number of Depositary Shares ______
____________________, as Depositary (the "Depositary"), hereby certifies that
____________________ is the registered owner of _______________________________
DEPOSITARY SHARES ("Depositary Shares"), each Depositary Share representing
[____] of Preferred Stock, Series ___, $1 par value of SBC Communications Inc.,
a Delaware corporation (the "Corporation"), on deposit with the Depositary,
subject to the terms and entitled to the benefits of the Deposit Agreement dated
as of _______,2000, (the "Deposit Agreement") between the Corporation and the
Depositary. By accepting this Receipt the holder hereof becomes a party to and
agrees to be bound by all the terms and conditions of the Deposit Agreement.
This Receipt shall not be valid or obligatory for any purpose or entitled to any
benefits under the Deposit Agreement unless it shall have been executed by the
Depositary by the manual signature of a duly authorized officer and shall have
been countersigned manually by a Registrar or by the Depositary as Registrar in
respect of the Receipts by the manual signature of a duly authorized officer
thereof.
Dated:
----------------
COUNTERSIGNED AND REGISTERED:
- -----------------------------
DEPOSITARY AND REGISTRAR
By:
-----------------------
Authorized Officer
<PAGE>
[REVERSE OF FORM OF DEPOSITARY RECEIPT]
SBC COMMUNICATIONS INC.
SBC COMMUNICATIONS INC. WILL FURNISH WITHOUT CHARGE TO EACH
RECEIPTHOLDER WHO SO REQUESTS A COPY OF THE DEPOSIT AGREEMENT AND A STATEMENT OR
SUMMARY OF THE POWERS, DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING,
OPTIONAL OR OTHER SPECIAL RIGHTS OF EACH CLASS OF STOCK OR SERIES THEREOF WHICH
THE CORPORATION IS AUTHORIZED TO ISSUE AND OF THE QUALIFICATIONS, LIMITATIONS OR
RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. ANY SUCH REQUEST IS TO BE
ADDRESSED TO THE DEPOITARY NAMED ON THE FACE OF THIS RECEIPT.
The following abbreviations, when used in the inscription on the face of
this receipt, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM - as tenants in common
TEN ENT - as tenants by the entireties
JT TEN - as joint tenants with right of survivorship
and not as tenants in common
Additional abbreviations may also be used though not in the above list.
For value received, _____________________________________ hereby sell(s),
assign(s), and transfer(s) unto
-------------------------
(Name)
-------------------------
(Address)
-------------------------
(Address)
-------------------------
(City, State, Zip Code)
Depositary Shares represented by this Receipt, and do hereby irrevocably
constitute and appoint _____________ to transfer the said Depositary Shares on
the books of the above named Depositary with full power of substitution in the
premises.
Dated :
---------------------
NOTICE: The signature to this assignment must
correspond with the name as written upon the face of
this Receipt in every particular, without alteration
or enlargement or any change whatever.
EXHIBIT 25-a
FORM T-1
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
FORM T-1
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939 OF A
CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE
ELIGIBILITY OF A TRUSTEE PURSUANT TO
SECTION 305(b)(2) |__|
---------------------------
THE BANK OF NEW YORK
(Exact name of trustee as specified in its charter)
New York 13-5160382
(State of incorporation (I.R.S. employer
if not a U.S. national bank) identification no.)
One Wall Street, New York, N.Y. 10286
(Address of principal executive offices) (Zip code)
---------------------------
SBC COMMUNICATIONS INC.
(Exact name of obligor as specified in its charter)
Delaware 43-1301883
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
175 E. Houston Street
San Antonio, Texas 78205-2233
(Address of principal executive offices) (Zip code)
---------------------------
= = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = = =
<PAGE>
1. GENERAL INFORMATION. FURNISH THE FOLLOWING INFORMATION AS TO THE TRUSTEE:
(A) NAME AND ADDRESS OF EACH EXAMINING OR SUPERVISING AUTHORITY TO WHICH
IT IS SUBJECT.
<TABLE>
- ---------------------------------------------------------------- --------------------------------------------
Name Address
- ---------------------------------------------------------------- --------------------------------------------
<S> <C>
Superintendent of Banks of the State of New York 2 Rector Street, New York, N.Y. 10006,
and Albany, N.Y. 12203
Federal Reserve Bank of New York 33 Liberty Plaza, New York, N.Y. 10045
Federal Deposit Insurance Corporation Washington, D.C. 20429
New York Clearing House Association New York, New York 10005
</TABLE>
(B) WHETHER IT IS AUTHORIZED TO EXERCISE CORPORATE TRUST POWERS.
Yes.
2. AFFILIATIONS WITH OBLIGOR.
IF THE OBLIGOR IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH SUCH
AFFILIATION.
None.
16. LIST OF EXHIBITS.
EXHIBITS IDENTIFIED IN PARENTHESES BELOW, ON FILE WITH THE COMMISSION, ARE
INCORPORATED HEREIN BY REFERENCE AS AN EXHIBIT HERETO, PURSUANT TO RULE
7A-29 UNDER THE TRUST INDENTURE ACT OF 1939 (THE "ACT") AND 17 C.F.R.
229.10(D).
1. A copy of the Organization Certificate of The Bank of New York
(formerly Irving Trust Company) as now in effect, which contains the
authority to commence business and a grant of powers to exercise
corporate trust powers. (Exhibit 1 to Amendment No. 1 to Form T-1
filed with Registration Statement No. 33-6215, Exhibits 1a and 1b to
Form T-1 filed with Registration Statement No. 33-21672 and Exhibit 1
to Form T-1 filed with Registration Statement No. 33-29637.)
4. A copy of the existing By-laws of the Trustee. (Exhibit 4 to Form T-1
filed with Registration Statement No.33-31019.)
6. The consent of the Trustee required by Section 321(b) of the Act.
(Exhibit 6 to Form T-1 filed with Registration Statement No.
33-44051.)
-2-
<PAGE>
7. A copy of the latest report of condition of the Trustee published
pursuant to law or to the requirements of its supervising or examining
authority.
-3-
<PAGE>
SIGNATURE
Pursuant to the requirements of the Act, the Trustee, The Bank of New York,
a corporation organized and existing under the laws of the State of New York,
has duly caused this statement of eligibility to be signed on its behalf by the
undersigned, thereunto duly authorized, all in The City of New York, and State
of New York, on the 10th day of May, 2000.
THE BANK OF NEW YORK
By: /s/MARY LAGUMINA
---------------------------------------
Name: MARY LAGUMINA
Title: ASSISTANT VICE PRESIDENT
<PAGE>
Exhibit 7
Consolidated Report of Condition of
THE BANK OF NEW YORK
of One Wall Street, New York, N.Y. 10286
And Foreign and Domestic Subsidiaries,
a member of the Federal Reserve System, at the close of business December 31,
1999, published in accordance with a call made by the Federal Reserve Bank of
this District pursuant to the provisions of the Federal Reserve Act.
Dollar Amounts
ASSETS In Thousands
Cash and balances due from depository
institutions:
Noninterest-bearing balances and currency
and coin............................................... $3,247,576
Interest-bearing balances................................ 6,207,543
Securities:
Held-to-maturity securities.............................. 827,248
Available-for-sale securities............................ 5,092,464
Federal funds sold and Securities purchased
under agreements to resell.............................. 5,306,926
Loans and lease financing receivables:
Loans and leases, net of unearned
income...............37,734,000
LESS: Allowance for loan and
lease losses............575,224
LESS: Allocated transfer risk
reserve........................13,278
Loans and leases, net of unearned income,
allowance, and reserve................................ 37,145,498
Trading Assets............................................. 8,573,870
Premises and fixed assets (including
capitalized leases)..................................... 723,214
Other real estate owned.................................... 10,962
Investments in unconsolidated subsidiaries
and associated companies................................ 215,006
Customers' liability to this bank on
acceptances outstanding................................. 682,590
Intangible assets.......................................... 1,219,736
Other assets............................................... 2,542,157
-----------
<PAGE>
LIABILITIES
Deposits:
In domestic offices..................................... $27,551,017
Noninterest-bearing.......................11,354,172
Interest-bearing..........................16,196,845
In foreign offices, Edge and Agreement
subsidiaries, and IBFs................................ 27,950,004
Noninterest-bearing..........................639,410
Interest-bearing..........................27,310,594
Federal funds purchased and Securities sold under
agreements to repurchase................................ 1,349,708
Demand notes issued to the U.S.Treasury.................... 300,000
Trading liabilities........................................ 2,339,554
Other borrowed money:
With remaining maturity of one year or less............. 638,106
With remaining maturity of more than one year
through three years................................... 449
With remaining maturity of more than three years........ 31,080
Bank's liability on acceptances executed and
outstanding............................................. 684,185
Subordinated notes and debentures.......................... 1,552,000
Other liabilities.......................................... 3,704,252
-----------
Total liabilities.......................................... 66,100,355
===========
EQUITY CAPITAL
Common stock............................................... 1,135,284
Surplus.................................................... 866,947
Undivided profits and capital reserves..................... 3,765,900
Net unrealized holding gains (losses) on
available-for-sale securities........................... (44,599)
Cumulative foreign currency translation adjustments........ (29,097)
-----------
Total equity capital....................................... 5,694,435
-----------
Total liabilities and equity capital....................... $71,794,790
===========
<PAGE>
I, Thomas J. Mastro, Senior Vice President and Comptroller of the
above-named bank do hereby declare that this Report of Condition has been
prepared in conformance with the instructions issued by the Board of Governors
of the Federal Reserve System and is true to the best of my knowledge and
belief.
Thomas J. Mastro
We, the undersigned directors, attest to the correctness of this Report
of Condition and declare that it has been examined by us and to the best of our
knowledge and belief has been prepared in conformance with the instructions
issued by the Board of Governors of the Federal Reserve System and is true and
correct.
Thomas A. Renyi
Alan R. Griffith Directors
Gerald L. Hassell
