As filed with the Securities and Exchange Commission on December xx, 2004.
Registration No. xx
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
SBC COMMUNICATIONS INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 43-1301883
(State or Other Jurisdiction of (I.R.S. Employer Identification No.)
Incorporation or Organization)
175 E. Houston, San Antonio, Texas 78205-2233
(Address of Principal Executive Offices) (Zip Code)
Stock Purchase and Deferral Plan
and Cash Deferral Plan
(Full Title of the Plan)
Name, address and telephone number Please send copies of all
of agent for service: communications to:
Joy Rick Wayne Wirtz
SBC Communications Inc. Assistant General Counsel
175 E. Houston, 11th Floor SBC Communications Inc.
San Antonio, Texas 78205-2233 175 E. Houston, 2nd Floor
(210) 821-4105 San Antonio, Texas 78205-2233
(210) 821-4105
CALCULATION OF REGISTRATION FEE
--------------------------------------------------------------------------------
Title of Amount Proposed Maximum Proposed Maximum Amount
Securities to be Offering Price Aggregate Registration
To Be Registered Per Share Offering Price Fee
Registered
--------------------------------------------------------------------------------
Common Stock, 55,000,000 $25.19 $1,385,450,000 $175,537
par value (2) (2) (2)(3)
$1.00
per share (1)
--------------------------------------------------------------------------------
Options 34,000,000 (5) (5) (5)
(4)(5)
--------------------------------------------------------------------------------
Deferred $25,000,000 100% $25,000,000 $3,168
Compensation (3)
Obligations (6)
--------------------------------------------------------------------------------
(1) The number of shares being registered represents the number of shares of
Common Stock which may be issued pursuant to the Stock Purchase and
Deferral Plan.
(2) The price per share was calculated in accordance with Rule 457(c) and (h)
of the Securities Act of 1933 for purposes of calculating the
registration fee. The maximum aggregate offering price was computed by
multiplying 55,000,000 shares by the average of the high and low price
of the stock on November 30, 2004.
(3) Pursuant to Rule 457(p) under the Securities Act of 1933, the registration
fee that would otherwise be payable under Rule 457 with regard to this
Registration Statement is hereby offset against a portion of the
Registrant's $297,931 registration fee that it paid to the SEC on November
19, 2004, for the Registration Statement on Form S-8, File No. 333-120765,
which was filed on November 24, 2004. The offering under Registration
Statement No. 333-120765 was terminated, and Form RW was filed with the SEC
on December 1, 2004, to withdraw the filing of the Registration Statement.
After giving effect to the offset for the registration fee otherwise due by
the Registrant's filing this Registration Statement, the Registrant has an
unused filing fee balance available for future offset under Rule 457(p) of
$119,226.
(4) Each option entitles the holder to purchase one share of common stock.
(5) No separate consideration will be received for the issuance of the options.
Therefore, no additional fee is required for the registration of the
options.
(6) The deferred compensation obligations are the unsecured obligations of SBC
Communications Inc. to pay deferred compensation in the future in
accordance with the terms of the Cash Deferral Plan.
Pursuant to Rule 416(a) of the Securities Act of 1933, the Registration
Statement also covers such indeterminate number of additional shares of Common
Stock as is necessary to eliminate any dilutive effect of any future stock split
or stock dividend. No additional registration fee is required. In addition,
pursuant to Rule 416(c) of the Securities Act of 1933, this Registration
Statement also covers an indeterminate amount of interests to be offered or sold
pursuant to the employee benefit plans described herein.
PART I. INFORMATION REQUIRED IN PROSPECTUS
Pursuant to the note following the Calculation of Registration Fee
above on this Form S-8, the documents containing the information specified by
Part I of Form S-8 will be sent or given to employees as specified by Rule
428(b)(1) under the Securities Act of 1933, as amended (the "Securities Act").
PART II. INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference
The following documents have been filed by SBC Communications Inc.
("SBC") with the Securities and Exchange Commission (the "SEC") (File No.
1-08610) and are incorporated herein by reference: Annual Report on Form 10-K
for the year ended December 31, 2003; Quarterly Reports on Form 10-Q for the
quarters ended March 31, 2004, June 30, 2004, and September 30, 2004; the
description of SBC's shares of common stock, contained in its Registration
Statement on Form 10, dated November 15, 1983; and SBC's Current Reports on Form
8-K, filed on February 17, 2004, March 22, 2004, May 27, 2004, June 10, 2004,
June 17, 2004, July 1, 2004, July 28, 2004, August 18, 2004, September 1, 2004,
September 30, 2004, October 13, 2004, October 19, 2004, October 21, 2004,
October 26, 2004, October 27, 2004, October 28, 2004, November 3, 2004, November
15, 2004, November 24, 2004, and November 29, 2004, and amendments thereto on
Form 8-K/A, filed on February 18, 2004 and November 2, 2004.
All documents filed by SBC pursuant to Sections 13(a), 13(c), 14 and
15(d) of the Securities Exchange Act of 1934, as amended, ("Exchange Act")
subsequent to the filing of this registration statement, and prior to the filing
of a post-effective amendment that indicates that all securities offered hereby
have been sold or which deregisters all securities remaining unsold, shall be
deemed to be incorporated by reference in this registration statement and to be
part hereof from the date of filing of such documents. Any statement contained
in a document incorporated or deemed to be incorporated by reference herein
shall be deemed to be modified or superseded for purposes of this registration
statement to the extent that a statement contained herein or in any other
subsequently filed document that also is or is deemed to be incorporated by
reference herein modifies or supersedes such statement. Any such statement so
modified or superseded shall not be deemed, except as so modified or superseded,
to constitute a part of this registration statement.
Item 4. Description of Securities
The Registrant is registering common shares which are registered
pursuant to Section 12 of the Securities Exchange Act of 1934, as amended. The
Registrant is also registering options to purchase common shares and deferred
compensation obligations, descriptions of which appear in Exhibit 10-ff and
Exhibit 10-gg, respectively, and such descriptions are incorporated by reference
herein.
Item 5. Interests of Named Experts and Counsel
None.
2
Item 6. Indemnification of Directors and Officers
The laws of the State of Delaware provide for indemnification of any
person (the "Indemnitee"), under certain circumstances, against reasonable
expenses, including attorneys' fees, incurred in connection with the defense of
a civil, criminal, administrative or investigative proceeding (other than an
action by or in the right of SBC) to which such person has been made, or
threatened to have been made, a party by reason of the fact that he or she is or
was serving as a director, officer, employee or agent of SBC or by reason of the
fact that he or she is or was serving at the request of SBC as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise. Pursuant to the statutes, indemnity may be provided
for if the Indemnitee acted in good faith (and with respect to a criminal action
or proceeding, had no reason to believe his or her conduct was unlawful) and in
a manner reasonably believed to be in or not opposed to the best interests of
SBC. With respect to any threatened, pending or completed action or suit by or
in the right of SBC, the statute provides that SBC may indemnify against
expenses (including attorneys' fees) actually and reasonably incurred in
connection with the defense or settlement if the Indemnitee acted in good faith
and in a manner reasonably believed to be in or not opposed to the best
interests of SBC, except that no indemnification may be made if the Indemnitee
shall have been adjudged to be liable to SBC unless specific court approval is
obtained. The statute further provides that the indemnification provided
pursuant to it shall not be deemed exclusive of any rights to which those
seeking indemnification may be entitled under any bylaw, agreement, vote of
shareowners or disinterested directors or otherwise. The bylaws of SBC provide
that SBC shall indemnify, and advance expenses to, any director, officer,
employee or agent of SBC or any person serving as a director or officer of any
other entity at the request of SBC to the fullest extent permitted by law.
Under the statute, SBC may, and does, maintain insurance policies
covering SBC, any director or officer of SBC and any person serving at the
request of SBC as a director or officer of any other entity. These insurance
policies generally cover liabilities arising out of such service, including
liabilities for which any such person may not be indemnified by SBC.
In recognition of the directors' and officers' need for substantial
protection against personal liability in order to assure their continued service
to SBC in an effective manner, their reliance on the bylaws and to provide them
with specific contractual assurances that the protection promised by such bylaws
will be available to them, SBC has entered into indemnity agreements with each
of its directors and officers.
Each agreement specifies that SBC will indemnify the director or
officer to the fullest extent permitted by law, as soon as practicable after
written demand is presented, against any and all expenses and losses arising out
of any action, suit or proceeding, inquiry or investigation related to the fact
that the director or officer is or was a director, officer or employee, agent or
fiduciary of SBC or was serving another corporation, partnership or joint
venture in such a capacity at the request of SBC. Each agreement also provides
that SBC will promptly advance any expenses if requested to do so. Each director
and officer undertakes in the agreement to repay such advancements if it is
ultimately determined that he or she was not entitled to indemnification. The
right of any director or officer to indemnification in any case will be
determined by either the Board of Directors (provided that a majority of
directors are not parties to the claim), by a person or body selected by the
Board of Directors or, if there has been a change in control, defined in the
agreement generally to mean an acquisition by any person of 20 percent or more
of SBC's stock or a change in the identity of a majority of the Board of
Directors over a two-year period, by a special, independent counsel.
3
In each agreement, SBC commits to maintaining its insurance coverage of
directors and officers both in scope and amount at least as favorable as the
policies maintained as of the effective date of the agreement. In the event that
such insurance is not reasonably available or if it is determined in good faith
that the cost of the insurance is not reasonably justified by the coverage
thereunder or that the coverage thereunder is inadequate, SBC may discontinue
any one or more of such policies or coverages. In such event, SBC agrees to hold
harmless and indemnify directors and officers to the full extent of the coverage
which would otherwise have been provided if the insurance in effect on the
effective date of the agreements had been maintained. Each agreement will remain
effective so long as the director or officer is subject to liability for an
indemnifiable event (the "indemnification period"). Each agreement also provides
that if during the indemnification period the then existing directors and
officers have more favorable indemnification rights than those provided for in
the agreement, each director or officer shall be entitled to such more favorable
rights. The foregoing summary is subject to the detailed provisions of the
Delaware General Corporation Law, SBC's bylaws, and the agreements between SBC
and each of its directors and officers.
Item 7. Exemption from Registration Claimed
Not applicable.
Item 8. Exhibits
Exhibit Number Description of Exhibits
5 Validity opinion of James D. Ellis, Esq.
10-ff Stock Purchase and Deferral Plan (Exhibit 10-ff to Form 8-K
dated November 19, 2004)
10-gg Cash Deferral Plan (Exhibit 10-gg to Form 8-K dated
November 19, 2004)
23-a Consent of Ernst & Young, LLP, Independent Auditors
23-b Consent of James D. Ellis, Esq. (contained in opinion filed
as Exhibit 5)
24-a Power of Attorney of Officer/Director
24-b Powers of Attorney of Directors
Item 9. Undertakings
(a) The undersigned Registrant hereby undertakes:
(1) to file, during any period in which offers or sales are being
made of the securities registered hereby, a post-effective
amendment to this registration statement:
(i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933;
4
(ii) to reflect in the prospectus any facts or events
arising after the effective date of the
registration statement (or the most recent
post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of
securities offered (if the total dollar value of
securities offered would not exceed that which was
registered) and any deviation from the low or high
end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the
Commission pursuant to Rule 424(b) if, in the
aggregate, the changes in volume and price represent
no more than 20 percent change in the maximum
aggregate offering price set forth in the
"Calculation of Registration Fee" table in the
effective registration statement;
(iii) to include any material information with respect to
the plan of distribution not previously disclosed in
the registration statement or any material change to
such information in the registration statement;
provided, however, that the undertakings set forth in paragraphs (a)(1)(i) and
(a)(1)(ii) above do not apply if the information required to be included in a
post-effective amendment by those paragraphs is contained in periodic reports
filed by the Registrant pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
registration statement;
(2) that, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) to remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
the Registrant's annual report pursuant to Section 13(a) or 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered herein, and the offering of such
securities at that time shall be deemed to be the initial bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act
of 1933 may be permitted to directors, officers and controlling persons of
the Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as
expressed in the Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by
5
controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy
as expressed in the Act and will be governed by the final adjudication of
such issue.
6
SIGNATURES
The Registrant. 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-8 and has duly caused this
registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of San Antonio, State of Texas, on this 1st day
of December, 2004.
SBC COMMUNICATIONS INC.
By: /s/ Richard G. Lindner
Richard G. Lindner
Senior Executive Vice President
and Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
Principal Executive Officer: Edward E. Whitacre, Jr.*
Chairman of the Board and
Chief Executive Officer
Principal Financial Richard G. Lindner
and Accounting Officer: Senior Executive Vice President
and Chief Financial Officer
By: /s/ Richard G. Lindner
Richard G. Lindner,
as attorney-in-fact for
Mr. Whitacre, the Directors,
and on his own behalf as
Principal Financial and
Accounting Officer
December 1, 2004
DIRECTORS:
-------------------------------------------------------------------------------
Gilbert F. Amelio* John B. McCoy*
Clarence C. Barksdale* Mary S. Metz*
James E. Barnes* Toni Rembe*
August A. Busch III* S. Donley Ritchey*
William P. Clark* Joyce M. Roche'*
Martin K. Eby, Jr.* Laura D'Andrea Tyson*
James A. Henderson* Patricia P. Upton*
Lynn M. Martin* Edward E. Whitacre, Jr.*
-------------------------------------------------------------------------------
* By power of attorney
7
INDEX TO EXHIBITS
Exhibit Number Description of Exhibits
5 Validity opinion of James D. Ellis, Esq.
10-ff Stock Purchase and Deferral Plan (Exhibit 10-ff to Form 8-K
dated November 19, 2004)
10-gg Cash Deferral Plan (Exhibit 10-gg to Form 8-K dated November
19, 2004)
23-a Consent of Ernst & Young, LLP, Independent Auditors
23-b Consent of James D. Ellis, Esq. (contained in opinion filed
as Exhibit 5)
24-a Power of Attorney of Officer/Director
24-b Powers of Attorney of Directors
8