Charter Communications, Inc.
Shares
Common Stock
($.001 par value)
Underwriting Agreement
New York, New York
, 2004
Citigroup Global Markets Inc.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Charter Communications, Inc., a corporation organized under the laws
of Delaware (the "Company"), proposes to issue to the Underwriters listed on
Schedule I hereto (the "Underwriters") shares of Common Stock, $.001 par value
("Common Stock") of the Company (said shares to be issued by the Company being
hereinafter called the "Underwritten Securities"). The Underwritten Securities
are being issued pursuant to a Share Lending Agreement, dated November 22, 2004,
between the Company and Citigroup Global Markets Inc. and certain other parties
(the "Share Lending Agreement"). To the extent there are no additional
Underwriters listed on Schedule I other than you, the term Underwriters shall
mean either the singular or plural as the context requires. Certain terms used
herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company represents and
warrants to, and agrees with, each Underwriter as set forth below in this
Section 1.(1)
(a) The Company has prepared and filed with the Commission a registration
statement (file number ) on [Form S-1], including a related preliminary
prospectus, for registration under the Act of the offering and sale of the
Underwritten Securities. The Company may have filed one or more amendments
thereto, including a related preliminary prospectus, each of which has
previously been furnished to you. The Company will next file with the Commission
one of the following: either (1) prior to the Effective Date of such
registration statement, a further amendment to such registration
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(1) The representations and warranties are subject to subsequent events
occuring after November 22, 2004, which may be disclosed in the Prospectus and
Registration Statement and the representations and warranties contained herein
amended accordingly; provided that the Underwriters must be reasonably satisfied
with the accuracay and completeness of such disclosure.
statement (including the form of final prospectus) or (2) after the Effective
Date of such registration statement, a final prospectus in accordance with Rules
430A and 424(b). In the case of clause (2), the Company has included in such
registration statement, as amended at the Effective Date, all information (other
than Rule 430A Information) required by the Act and the rules thereunder to be
included in such registration statement and the Prospectus. As filed, such
amendment and form of final prospectus, or such final prospectus, shall contain
all Rule 430A Information, together with all other such required information,
and, except to the extent the Underwriters shall agree in writing to a
modification, shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the Execution
Time, shall contain only such specific additional information and other changes
(beyond that contained in the latest Preliminary Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made therein;
(b) On the Effective Date, the Registration Statement did or will, and
when the Prospectus is first filed (if required) in accordance with Rule 424(b)
and on the Closing Date (as defined herein) the Prospectus (and any supplements
thereto) will, comply in all material respects with the applicable requirements
of the Act and the rules thereunder; on the Effective Date and at the Execution
Time, the Registration Statement did not or will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein not
misleading; and, on the Effective Date, the Prospectus, if not filed pursuant to
Rule 424(b), will not, and on the date of any filing pursuant to Rule 424(b) and
on the Closing Date and any settlement date, the Prospectus (together with any
supplement thereto) will not, include any untrue statement of a material fact or
omit to state a material fact necessary in order to make the statements therein,
in the light of the circumstances under which they were made, not misleading;
provided, however, that the Company makes no representations or warranties as to
the information contained in or omitted from the Registration Statement, or the
Prospectus (or any supplement thereto) in reliance upon and in conformity with
information furnished in writing to the Company by or on behalf of any
Underwriter through the Underwriters specifically for inclusion in the
Registration Statement or the Prospectus (or any supplement thereto).
(c) None of the Company or any of its subsidiaries has sustained since the
date of the latest audited financial statements included in the Prospectus any
material loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any court or
governmental action, order or decree, otherwise than as set forth or
contemplated in the Prospectus; and, since the respective dates as of which
information is given in the Prospectus, there has not been any material change
in the capital stock or limited liability company interests or long-term debt of
the Company or any of its subsidiaries or any material adverse change, or any
development involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, members' or stockholders'
equity or results of operations of the Company's subsidiaries, taken as a whole,
otherwise than as set forth or contemplated in the Prospectus;
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(d) The Company and each of its subsidiaries has good and marketable title
to all real property and good and valid title to all personal property owned by
it reflected as owned in the financial statements included in the Prospectus, in
each case free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or except such as do not materially affect the
value of such property and do not interfere with the use made and proposed to be
made of such property by the Company and its subsidiaries; and any real property
and buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as are
not material and do not interfere with the use made and proposed to be made of
such property and buildings by the Company and its subsidiaries;
(e) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Delaware, and has
power and authority to own its properties and conduct its business as described
in the Prospectus and to execute, deliver and perform its obligations under this
Agreement, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business so
as to require such qualification; and is not subject to liability or disability
by reason of the failure to be so qualified in any such jurisdiction, except
such as would not, individually or in the aggregate, have a material adverse
effect on the current or future financial position, stockholders' equity or
results of operations of the Company and the Company's subsidiaries, taken as a
whole (a "Material Adverse Effect"); each of the Company's subsidiaries has been
duly incorporated or formed, as the case may be, and is validly existing as a
corporation, partnership or limited liability company, as the case may be, in
good standing under the laws of its jurisdiction of incorporation or formation,
in each case except such as would, individually or in the aggregate, not result
in a Material Adverse Effect;
(f) All the outstanding capital stock, limited liability company interests
or partnership interests, as the case may be, of the Company and each
"significant subsidiary" (as such term is defined in Rule 1-02 of Regulation
S-X) of the Company (each a "Significant Subsidiary") have been duly and validly
authorized and issued, are fully paid and nonassessable and (except as otherwise
set forth in the Prospectus) are owned directly or indirectly by the Company,
free and clear of all liens, encumbrances, equities or claims;
(g) The Company's authorized equity capitalization is as set forth in the
Prospectus; the capital stock of the Company conforms to the description thereof
contained [or incorporated by reference] in the Prospectus; the outstanding
shares of Common Stock have been duly authorized and validly issued and are
fully paid and nonassessable; the shares of Underwritten Securities have been
duly authorized and, when issued upon payment of the Loan Fee (as defined in the
Share Lending Agreement) in accordance with the terms of the Share Lending
Agreement, will be validly issued, fully paid and nonassessable; the Board of
Directors of the Company has duly and validly adopted resolutions reserving such
shares of Underwritten Securities for issuance upon payment of the Loan Fee in
accordance with the terms of the Share Lending Agreement; the holders of
outstanding shares of capital stock of the Company are not entitled to
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preemptive or other rights to subscribe for the Underwritten Securities; and,
except as set forth in the Prospectus, no options, warrants or other rights to
purchase, agreements or other obligations to issue, or rights to convert any
obligations into or exchange any securities for, shares of capital stock of or
ownership interests in the Company are outstanding;
(h) This Agreement has been duly authorized and executed by the Company;
(i) The Share Lending Agreement has been duly authorized by the Company
and constitutes the legal, valid and binding obligation of the Company,
enforceable against the Company in accordance with its terms (subject, as to
enforcement, to applicable bankruptcy, reorganization, insolvency, moratorium or
other laws affecting creditors' rights generally from time to time in effect and
to general equitable principles, whether arising in equity or at law);
(j) None of the transactions contemplated by this Agreement will violate
or result in a violation of Section 7 of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), or any regulation promulgated thereunder,
including, without limitation, Regulations T, U, and X of the Board of Governors
of the Federal Reserve System;
(k) Prior to the date hereof, none of the Company or any of its affiliates
has taken any action which is designed to or which has constituted or which
might have been expected to cause or result in stabilization or manipulation of
the price of any security of the Company in connection with the offering of the
Underwritten Securities;
(l) The issue and sale of the Underwritten Securities and the compliance
by the Company with all provisions of this Agreement and the Share Lending
Agreement and the consummation of the transactions herein and therein
contemplated will not conflict with or result in a breach or violation of any of
the terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement, lease, license, franchise agreement,
permit or other agreement or instrument to which the Company or any of the
Company's subsidiaries is a party or by which the Company or any of the
Company's subsidiaries is bound or to which any of the property or assets of the
Company or any of the Company's subsidiaries is subject, nor will such action
result in any violation of any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the Company or any
of the Company's subsidiaries or any of their properties, including, without
limitation, the Communications Act of 1934, as amended, the Cable Communications
Policy Act of 1984, as amended, the Cable Television Consumer Protection and
Competition Act of 1992, as amended, and the Telecommunications Act of 1996
(collectively, the "Cable Acts"), any order, rule or regulation of the Federal
Communications Commission (the "FCC"), or the Order Instituting Cease and Desist
Proceedings, Making Findings, and Imposing a Cease and Desist Order Pursuant to
Section 21C of the Securities and Exchange Act of 1934, dated July 27, 2004,
issued In the Matter of Charter Communications, Inc., except where such
conflicts, breaches, violations or defaults would not, individually or in the
aggregate, have a Material Adverse Effect and would
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not have the effect of preventing the Company from performing any of its
respective obligations under the Share Lending Agreement and this Agreement; nor
will such action result in any violation of the certificate of incorporation or
bylaws of the Company; and no consent, approval, authorization, order,
registration or qualification of or with any such court or governmental agency
or body is required, including, without limitation, under the Cable Acts or any
order, rule or regulation of the FCC, for the issue and sale of the Underwritten
Securities or the consummation by the Company of the transactions contemplated
by the Share Lending Agreement and this Agreement, except registration of the
Underwritten Securities under the Act and such consents, approvals,
authorizations, registrations or qualifications as have been made or except as
may be required under the state or foreign securities or Blue Sky laws in
connection with the purchase and distribution of the Underwritten Securities or
such as may be required by the National Association of Securities Dealers, Inc.
(the "NASD");
(m) None of the Company or any of the Company's subsidiaries is (i) in
violation of its certificate of incorporation, bylaws, certificate of formation,
limited liability company agreement, partnership agreement or other
organizational document, as the case may be(2), (ii) in default in the
performance or observance of any obligation, agreement, covenant or condition
contained in any indenture, mortgage, deed of trust, loan agreement, lease,
license, permit or other agreement or instrument to which it is a party or by
which it or any of its properties may be bound or (iii) in violation of the
terms of any franchise agreement, or any law, statute, rule or regulation or any
judgment, decree or order, in any such case, of any court or governmental or
regulatory agency or other body having jurisdiction over the Company, the Parent
Companies or any of the Company's subsidiaries or any of their properties or
assets, including, without limitation, the Cable Acts or any order, rule or
regulation of the FCC, except, in the case of clauses (ii) and (iii), such as
would not, individually or in the aggregate, have a Material Adverse Effect;
(n) The statements set forth in the Prospectus under the caption ["Risk
Factors," "Description of the Share Lending Agreement," "Regulation and
Legislation," "Description of Capital Stock," "Management," "Principal
Stockholders," "Certain Relationships and Related Party Transactions,"
"Description of Certain Indebtedness," "Business," "Management's Discussion and
Analysis of Financial Condition and Results of Operations" and "United States
Federal Income Considerations;"] insofar as they purport to describe the
provisions of the laws, documents and arrangements referred to therein and to
the extent not superceded by subsequent disclosure, are accurate in all material
respects;
(o) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings (including, without limitation, by the FCC or any
franchising authority) pending to which the Company or any of the Company's
subsidiaries is a
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(2) Clause (i) is not subject to the provisions of Footnote 1. . This
Footnote 2 shall not be deemed, by implication or otherwise, to be approval by
the Underwriters of such disclosure being added to any other provision of this
Section 1. .
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party or of which any property of the Company or any of the Company's
subsidiaries is the subject which, if determined adversely with respect to the
Company or any of the Company's subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect; and, to the best knowledge of the
Company and, except as disclosed in the Prospectus, no such proceedings are
threatened or contemplated by governmental authorities or threatened by others;
(p) The Company and the Company's subsidiaries carry insurance (including,
without limitation, self-insurance) in such amounts and covering such risks as
in the reasonable determination of the Company is adequate for the conduct of
its business and the value of its properties;
(q) Except as set forth in the Prospectus, there is no strike, labor
dispute, slowdown or work stoppage with the employees of any of the Company or
its subsidiaries which is pending or, to the best knowledge of the Company,
threatened which would, individually or in the aggregate, have a Material
Adverse Effect;
(r) The Company is not and after giving effect to the offering and sale of
the Underwritten Securities will not be, an "investment company" or any entity
"controlled" by an "investment company" as such terms are defined in the U.S.
Investment Company Act of 1940, as amended (the "Investment Company Act");
(s) The consolidated financial statements (including the notes thereto)
included in the Prospectus present fairly in all material respects the
respective consolidated financial positions, results of operations and cash
flows of the entities to which they relate at the dates and for the periods to
which they relate and have been prepared in accordance with U.S. generally
accepted accounting principles ("GAAP") applied on a consistent basis (except as
otherwise noted therein). The selected historical financial data in the
Prospectus present fairly in all material respects the information shown therein
and, except with respect to the selected historical financial data for the
calendar year ended December 31, 1999 (which has not been restated), have been
prepared and compiled on a basis consistent with the audited financial
statements included therein;
(t) The pro forma financial information included in the Prospectus (i)
complies as to form in all material respects with the applicable requirements of
Regulation S-X for Form S-1 promulgated under the Exchange Act, and (ii) has
been properly computed on the bases described therein; the assumptions used in
the preparation of the pro forma financial information included in the
Prospectus are reasonable and the adjustments used therein are appropriate to
give effect to the transactions or circumstances referred to therein;
(u) KPMG LLP, who has certified the financial statements included in the
Prospectus, is a firm of independent public accountants as required by the Act
and the rules and regulations of the Securities and Exchange Commission (the
"Commission") thereunder, based upon representations by such firm to us;
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(v) The Company and the Company's subsidiaries own or possess, or can
acquire on reasonable terms, adequate licenses, trademarks, service marks, trade
names and copyrights (collectively, "Intellectual Property") necessary to
conduct the business now or proposed to be operated by each of them as described
in the Prospectus, except where the failure to own, possess or have the ability
to acquire any Intellectual Property would not, individually or in the
aggregate, have a Material Adverse Effect; and none of the Company and the
Company's subsidiaries has received any notice of infringement of or conflict
with (and none actually knows of any such infringement of or conflict with)
asserted rights of others with respect to any Intellectual Property which, if
any such assertion of infringement or conflict were sustained would,
individually or in the aggregate, have a Material Adverse Effect;
(w) Except as described in the Prospectus, the Company and the Company's
subsidiaries have obtained all consents, approvals, orders, certificates,
licenses, permits, franchises and other authorizations of and from, and have
made all declarations and filings with, all governmental and regulatory
authorities (including, without limitation, the FCC), all self-regulatory
organizations and all courts and other tribunals legally necessary to own,
lease, license and use their respective properties and assets and to conduct
their respective businesses in the manner described in the Prospectus, except to
the extent that the failure to so obtain or file would not, individually or in
the aggregate, have a Material Adverse Effect;
(x) The Company and the Company's subsidiaries have filed all necessary
federal, state and foreign income and franchise tax returns required to be filed
as of the date hereof, except where the failure to so file such returns would
not, individually or in the aggregate, have a Material Adverse Effect, and have
paid all taxes shown as due thereon; and there is no tax deficiency that has
been asserted against the Company or any of its subsidiaries (other than those
which the amount or validity thereof are currently being challenged in good
faith by appropriate proceedings and with respect to which reserves in
conformity with GAAP have been provided on the books of the relevant entity)
that could reasonably be expected to result, individually or in the aggregate,
in a Material Adverse Effect;
(y) The Company and the Company's subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally accepted
accounting principles and to maintain accountability for assets; (iii) access to
assets is permitted only in accordance with management's general or specific
authorization; and (iv) the recorded accountability for assets is compared with
the existing assets at reasonable intervals and appropriate action is taken with
respect to any differences;
(z) Except as described in the Prospectus: (i) each of the franchises held
by, or necessary for any operations of, the Company and its subsidiaries that
are material to the Company and its subsidiaries, taken as a whole, is in full
force and effect, with no material restrictions or qualifications; (ii) to the
best knowledge of the Company, no
7
event has occurred which permits, or with notice or lapse of time or both .would
permit, the revocation or non-renewal of any such franchises, assuming the
filing of timely renewal applications and the timely payment of all applicable
filing and regulatory fees to the applicable franchising authority, or which
would be reasonably likely to result, individually or in the aggregate, in any
other material impairment of the rights of the Company and the Company's
subsidiaries in such franchises; and (iii) the Company has no reason to believe
that any franchise that is material to the operation of the Company and its
subsidiaries will not be renewed;
(aa) Each of the programming agreements entered into by, or necessary for
any operations of, the Company or its subsidiaries that are material to the
Company and its subsidiaries, taken as a whole, is in full force and effect (or
in any cases where the Company or its subsidiaries and any suppliers of content
are operating in the absence of an agreement, such content providers and the
Company and its subsidiaries provide and receive service in accordance with
terms that have been agreed to or consistently acknowledged or accepted by both
parties, including, without limitation, situations in which providers or
suppliers of content accept regular payment for the provision of such content);
and to the best knowledge of the Company, no event has occurred (or with notice
of lapse of time or both would occur) which would be reasonably likely to result
in the early termination or non-renewal of any such programming agreements and
which would, individually or in the aggregate, result in a Material Adverse
Effect; no amendments or other changes to such programming agreements, other
than amendments relating to intra-company transfers, extensions of termination
dates or pricing adjustments, together with other changes that are not in the
aggregate material, have been made to the copies of the programming agreements
provided for the review of the Purchasers or their Underwriters;
(bb) The Company and the Company's subsidiaries (i) are in compliance with
any and all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of `them under applicable Environmental Laws to conduct their
respective businesses and (iii) are in compliance with all terms and conditions
of any such permit, license or approval, except where such noncompliance with
Environmental Laws, failure to receive required permits, licenses or other
approvals or failure to. comply with the terms and conditions of such permits,
licenses or approvals would not, individually or in the aggregate, have a
Material Adverse Effect;
(cc) Immediately after the consummation of this offering (including after
giving effect to the execution, delivery and performance of this Agreement), (i)
the fair market value of the assets of each of Charter Communications Holdings,
LLC, CCH I, LLC, CCH II, LLC, CCO Holdings, LLC, Charter Communications
Operating, LLC and the Company, each on a consolidated basis with its
subsidiaries, exceeds and will exceed its liabilities, on a consolidated basis
with its subsidiaries; (ii) the present fair saleable value of the assets of
each of Holdings, CCH I, LLC, CCH II, LLC, CCOH and the Company, each on a
consolidated basis with its subsidiaries, exceeds and will exceed its
liabilities, on a consolidated basis with its subsidiaries; (iii) each of
Charter
8
Communications Holdings, LLC, CCH I, LLC, CCH II, LLC, CCO Holdings, LLC,
Charter Communications Operating, LLC and the Company, each on a consolidated
basis with its subsidiaries, is and will be able to pay its debts, on a
consolidated basis with its subsidiaries, as such debts respectively mature or
otherwise become absolute or due; and (iv) each of Charter Communications
Holdings, LLC, CCH I, LLC, CCH II, LLC, CCO Holdings, LLC, Charter
Communications Operating, LLC and the Company, on a consolidated basis with its
subsidiaries, does not have and will not have unreasonably small capital with
which to conduct its respective operations;
(dd) The Company maintains a system of disclosure controls and procedures
to ensure that material information relating to the Company, including its
consolidated subsidiaries, is made known to each of them by others within those
entities, particularly during the period in which the periodic reports are being
prepared;
(ee) The Registration Statement complied when it became effective,
complies and, at the time of purchase and any additional time of purchase, will
comply, and the Prospectus conformed as of its date, conforms and, at the time
of purchase and any additional time of purchase, will conform in all material
respects with the requirements of the Act and any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been and will be so described or filed;
(ff) There is, and has been, no material failure on the part of the
Company or the Company's subsidiaries, or any of their directors or officers, in
their capacities as such, to comply with any provision of the Sarbanes Oxley Act
of 2002 and the rules and regulations promulgated in connection therewith,
including, without limitation, Section 402 related to loans and Sections 302 and
906 related to certifications; and
(gg) The statistical and market-related data included in the Prospectus
are based on or derived from sources that the Company believes to be reliable
and accurate.
Any certificate signed by any officer of the Company and delivered
to the Underwriters or counsel for the Underwriters in connection with the
offering of the Underwritten Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Issuance and Loan of Underwritten Securities. (a) Subject to the
terms and conditions of, and in reliance upon the representations and warranties
in, this Agreement and the Share Lending Agreement, the Company agrees to issue
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
acquire from the Company (subject to the Underwriter's obligation to repay such
borrowings as provided in the Share Lending Agreement), in exchange for the
payment of a fee of $0.001 per share (the "Loan Fee"), the number of the
Underwritten Securities set forth opposite such Underwriter's name in Schedule I
hereto.
3. Delivery and Payment. Delivery of the Underwritten Securities and
payment of the Loan Fee in respect thereof shall be made at 10:00 AM, New York
City
9
time, on , 20 , or at such time on such later date not more than three Business
Days after the foregoing date as the Underwriters shall designate, which date
and time may be postponed by agreement between the Underwriters and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Underwritten Securities being herein called the "Closing Date").
Delivery of the Underwritten Securities shall be made to the Underwriters for
the respective accounts of the several Underwriters against payment by the
Underwriters of the Loan Fee in respect thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Underwritten Securities shall be made through the
facilities of The Depository Trust Company unless the Underwriters shall
otherwise instruct.
4. Offering by Underwriters. It is understood that the several
Underwriters propose to offer the Underwritten Securities for sale to the public
as set forth in the Prospectus.
5. Agreements. The Company agrees with the several Underwriters
that:
(a) The Company will use its best efforts to cause the Registration
Statement, if not effective at the Execution Time, and any amendment
thereof, to become effective. Prior to the termination of the offering of
the Underwritten Securities, the Company will not file any amendment of
the Registration Statement or supplement to the Prospectus or any Rule
462(b) Registration Statement unless the Company has furnished you a copy
for your review prior to filing and will not file any such proposed
amendment or supplement to which you reasonably object. Subject to the
foregoing sentence, if the Registration Statement has become or becomes
effective pursuant to Rule 430A, or filing of the Prospectus is otherwise
required under Rule 424(b), the Company will cause the Prospectus,
properly completed, and any supplement thereto to be filed in a form
approved by the Underwriters with the Commission pursuant to the
applicable paragraph of Rule 424(b) within the time period prescribed and
will provide evidence satisfactory to the Underwriters of such timely
filing. The Company will promptly advise the Underwriters (1) when the
Registration Statement, if not effective at the Execution Time, shall have
become effective, (2) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to Rule
424(b) or when any Rule 462(b) Registration Statement shall have been
filed with the Commission, (3) when, prior to termination of the offering
of the Underwritten Securities, any amendment to the Registration
Statement shall have been filed or become effective, (4) of any request by
the Commission or its staff for any amendment of the Registration
Statement, or any Rule 462(b) Registration Statement, or for any
supplement to the Prospectus or for any additional information, (5) 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 (6) 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 institution or
threatening of any proceeding for such purpose.
10
The Company will use its best efforts to prevent the issuance of any such
stop order or the suspension of any such qualification and, if issued, to
obtain as soon as possible the withdrawal thereof.
(b) If, at any time when a prospectus relating to the Underwritten
Securities is required to be delivered under the Act, any event occurs as
a result of which 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 to
amend the Registration Statement or supplement the Prospectus to comply
with the Act or the rules thereunder, the Company promptly will (1) notify
the Underwriters of any such event, (2) prepare and file with the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement or
omission or effect such compliance; and (3) supply any supplemented
Prospectus to you in such quantities as you may reasonably request.
(c) As soon as practicable, the Company will make generally
available to its security holders and to the Underwriters an earnings
statement or statements of the Company and its subsidiaries which will
satisfy the provisions of Section 11(a) of the Act and Rule 158 under the
Act.
(d) The Company will furnish to the Underwriters and counsel for the
Underwriters signed copies of the Registration Statement (including
exhibits thereto) and to each other Underwriter a copy of the Registration
Statement (without exhibits thereto) and, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as many
copies of each Preliminary Prospectus and the Prospectus and any
supplement thereto as the Underwriters may reasonably request.
(e) The Company will arrange, if necessary, for the qualification of
the Underwritten Securities for sale under the laws of such jurisdictions
as the Underwriters may designate and will maintain such qualifications in
effect so long as required for the distribution of the Underwritten
Securities; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so
qualified or to take any action that would subject it to taxation or
service of process in suits, other than those arising out of the offering
or sale of the Underwritten Securities, in any jurisdiction where it is
not now so subject.
(f) The Company will comply with all applicable securities and other
applicable laws, rules and regulations, including, without limitation, the
Sarbanes Oxley Act, and to use its best efforts to cause the Company's
directors and officers, in their capacities as such, to comply with such
laws, rules and regulations, including, without limitation, the provisions
of the Sarbanes Oxley Act.
11
(g) The Company will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected
to cause or result in, under the Exchange Act or otherwise, stabilization
or manipulation of the price of any security of the Company to facilitate
the sale or resale of the Underwritten Securities.
(h) The Company agrees to pay the costs and expenses relating to the
following matters: (i) the preparation, printing or reproduction and
filing with the Commission of the Registration Statement (including
financial statements and exhibits thereto), each Preliminary Prospectus,
the Prospectus, and each amendment or supplement to any of them; (ii) the
printing (or reproduction) and delivery (including postage, air freight
charges and charges for counting and packaging) of such copies of the
Registration Statement, each Preliminary Prospectus, the Prospectus, and
all amendments or supplements to any of them, as may, in each case, be
reasonably requested for use in connection with the offering and sale of
the Underwritten Securities; (iii) the preparation, printing,
authentication, issuance and delivery of certificates for the Underwritten
Securities, including any stamp or transfer taxes in connection with the
original issuance and sale of the Underwritten Securities; (iv) the
printing (or reproduction) and delivery of this Agreement, any blue sky
memorandum and all other agreements or documents printed (or reproduced)
and delivered in connection with the offering of the Underwritten
Securities; (v) the registration of the Securities under the Exchange Act
and the listing of the Underwritten Securities on the Nasdaq National
Market; (vi) any registration or qualification of the Underwritten
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses
of counsel for the Underwriters relating to such registration and
qualification); (vii) any filings required to be made with the National
Association of Securities Dealers, Inc. (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to
such filings); (viii) the transportation and other expenses incurred by or
on behalf of Company representatives in connection with presentations to
prospective purchasers of the Underwritten Securities; (ix) the fees and
expenses of the Company's accountants and the fees and expenses of counsel
(including local and special counsel) for the Company; and (x) all other
costs and expenses incident to the performance by the Company of its
obligations hereunder.
6. Conditions to the Obligations of the Underwriters. The
obligations of the Underwriters to borrow the Underwritten Securities and pay
the Loan Fee as provided herein shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein as of
the Execution Time and the Closing Date, to the accuracy of the statements of
the Company made in any certificates pursuant to the provisions hereof, to the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) If the Registration Statement has not become effective prior to
the Execution Time, unless the Underwriters agree in writing to a later
time, the
12
Registration Statement will become effective not later than (i) 6:00 PM
New York City time on the date of determination of the public offering
price, if such determination occurred at or prior to 3:00 PM New York City
time on such date or (ii) 9:30 AM on the Business Day following the day on
which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of the
Prospectus, or any supplement thereto, is required pursuant to Rule
424(b), the Prospectus, and any such supplement, will be filed in the
manner and within the time period required by Rule 424(b); and no stop
order suspending the effectiveness of the Registration Statement shall
have been issued and no proceedings for that purpose shall have been
instituted or threatened.
(b) The Company shall have requested and caused , counsel for the
Company, to have furnished to the Underwriters their opinion, dated the
Closing Date and addressed to the Underwriters, covering such matters as
are typically provided in opinions delivered in connection with
underwritten equity offerings, in form and substance reasonably
satisfactory to you.
(c) , special regulatory counsel to the Company, shall have
furnished to you their written opinion, dated the Closing Date, in form and
substance reasonably satisfactory to you, to the effect that:
(i) The issue and sale of the Underwritten Securities and the
compliance by the Company with the Share Lending Agreement and the consummation
of the transactions herein and therein contemplated do not and will not
contravene the Cable Acts or any order, rule or regulation of the FCC to which
the Company or any of their Parent Companies or subsidiaries or any of their
property is subject; however, to the extent that any document purports to grant
a security interest in licenses issued by the FCC, the FCC has taken the
position that security interests in FCC licenses are not valid. To the extent
that any party seeks to exercise control of an FCC license in the event of a
default or for any other reason, it may be necessary to obtain prior FCC
consent;
(ii) To the best of such counsel's knowledge, no consent, approval,
authorization or order of, or registration, qualification or filing with the FCC
is required under the Cable Acts or any order, rule or regulation of the FCC in
connection with the issue and sale of the Underwritten Securities and the
compliance by the Company with all the provisions of this Agreement and the
Share Lending Agreement and the consummation of the transactions herein and
therein contemplated; however, to the extent that any document purports to grant
a security interest in licenses issued by the FCC, the FCC has taken the
position that security interests in FCC licenses are not valid; to the extent
that any party seeks to exercise control of an FCC license in the event of a
default or for any other reason, it may be necessary to obtain prior FCC
consent;
(iii) The statements set forth in the Prospectus under the caption
["Regulation and Legislation" and under the caption "Risk Factors" under the
subheading "Risks relating to regulatory and legislative matters,"] insofar as
they constitute summaries of laws referred to therein, concerning the Cable Acts
and the published rules,
13
regulations and policies promulgated by the FCC thereunder, fairly summarize the
matters described therein;
(iv) To such counsel's knowledge based solely upon its review of
publicly available records of the FCC and operational information provided by
the Company's and the Company's subsidiaries' management, the Company and its
subsidiaries hold all FCC licenses for cable antenna relay services necessary to
conduct the business of the Company and its subsidiaries as currently conducted,
except to the extent the failure to hold such FCC licenses would not,
individually or in the aggregate, be reasonably expected to have a Material
Adverse Effect; and
(v) Except as disclosed in the Prospectus and except with respect to
rate regulation matters, and general rulemakings and similar matters relating
generally to the cable television, industry, to such counsel's knowledge, based
solely upon its review of the publicly available records of the FCC and upon
inquiry of the Company's and its subsidiaries' management, during the time the
cable systems of the Company and its subsidiaries have been owned by the Company
and its subsidiaries (A) there has been no adverse FCC judgment, order or decree
issued by the FCC relating to the ongoing operations of any of the Company or
one of its subsidiaries that has had or could reasonably be expected to have a
Material Adverse Effect; and (B) there are no actions, suits, proceedings,
inquiries or investigations by or before the FCC pending or threatened in
writing against or specifically affecting the Company or any of its Parent
Companies or subsidiaries or any cable system of the Company or any of its
subsidiaries which could, individually or in the aggregate, be reasonably
expected to result in a Material Adverse Effect;
(d) , General Counsel of the Company, shall have furnished to you his
written opinion, dated as of the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) Each subsidiary of the Company listed on a schedule attached to
such counsel's opinion (the "Charter Subsidiaries") has been duly incorporated
or formed, as the case may be, and is validly existing as a corporation, limited
liability company or partnership, as the case may be, in good standing under the
laws of its jurisdiction of incorporation or formation; and all the issued
shares of capital stock, limited liability company interests or partnership
interests, as the case may be, of each Charter Subsidiary are set forth on the
books and records of the Company and, except for those Charter Subsidiaries that
are general partners, assuming receipt of requisite consideration therefor, are
fully paid and nonassessable (in the case of corporate entities) and not subject
to additional capital contributions (in the case of limited liability company
entities and limited partnerships); and, except as otherwise set forth in the
Prospectus, and except for liens not prohibited under the credit agreements
listed on such schedule, all outstanding shares of capital stock of each of the
Charter Subsidiaries are owned by the Company, either directly or indirectly or
through wholly-owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any other
security interest, claim, lien or encumbrance;
14
(ii) Each of the Company and the Charter Subsidiaries has been duly
qualified as a foreign corporation, partnership or limited liability company, as
the case may be, for the transaction of business and is in good standing under
the laws of each jurisdiction set forth in a schedule to such counsel's opinion;
(iii) To the best of such counsel's knowledge and other than as set
forth in the Prospectus, there are no legal or governmental proceedings pending
to which the Company, or any of the Company's subsidiaries is party or of which
any property of the Company or any of the Company's subsidiaries is the subject,
of a character required to be disclosed in the Registration Statement, which is
not so disclosed, except for such proceedings which are not likely to have,
individually or in the aggregate, a Material Adverse Effect; and, to the best of
such counsel's knowledge and other than as set forth in the Prospectus, no such
proceedings are overtly threatened by governmental authorities or by others; and
(iv) The issue and sale of the Underwritten Securities and the
compliance by the Company with all the provisions of the Share Lending Agreement
and the consummation of the transactions therein contemplated will not result in
a violation of the provisions of the certificate of incorporation or by-laws, or
certificate of formation or limited liability company agreement or partnership
agreement, as the case may be, of any of the Charter Subsidiaries.
(e) On the Execution Date and also on the Closing Date, KPMG LLP
shall have furnished to you a "comfort" letter or letters of the type
customarily provided in connection with underwritten equity offerings, dated the
respective dates of delivery thereof, in form and substance reasonably
satisfactory to you;
(f) The Underwriters shall have received from , counsel for the
Underwriters, such opinion or opinions as are customarily provided by
underwriters' counsel in connection with the registration of equity securities
in underwritten offerings on Form S-1, dated the Closing Date and addressed to
the Underwriters, with respect to the issuance and sale of the Underwritten
Securities, the Registration Statement and the Prospectus (together with any
supplement thereto) and other related matters as the Underwriters 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.
(g) The Company shall have furnished to the Underwriters a
certificate of the Company, signed by the Chairman of the Board or the President
and the principal financial or accounting officer of the Company, dated the
Closing Date, to the effect that the signers of such certificate have carefully
examined the Registration Statement, the Prospectus, any supplements to the
Prospectus and this Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct on and as of the Closing Date with
the same effect as if made on the Closing Date and the Company has
15
complied with all the agreements and satisfied all the conditions on
its part to be performed or satisfied at or prior to the Closing
Date;
(ii) no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceedings for that
purpose have been instituted or, to the Company's knowledge,
threatened; and
(iii) since the date of the most recent financial statements
included in the Prospectus (exclusive of any supplement thereto),
there has been no material adverse effect on the condition
(financial or otherwise), prospects, earnings, business or
properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of
business, except as set forth in or contemplated in the Prospectus
(exclusive of any supplement thereto).
(h) Subsequent to the Execution Time or, if earlier, the dates as of
which information is given in the Registration Statement (exclusive of any
amendment thereto) and the Prospectus (exclusive of any supplement
thereto), there shall not have been (i) any change or decrease specified
in the letter or letters referred to in paragraph (e) of this Section 6 or
(ii) any change, or any development involving a prospective change, in or
affecting the condition (financial or otherwise), earnings, business or
properties of the Company and its subsidiaries taken as a whole, whether
or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto) the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the sole judgment of the Underwriters, so
material and adverse as to make it impractical or inadvisable to proceed
with the offering or delivery of the Underwritten Securities as
contemplated by the Registration Statement (exclusive of any amendment
thereto)and the Prospectus (exclusive of any supplement thereto).
(i) Prior to the Closing Date, the Company shall have furnished to
the Underwriters such further information, certificates and documents as
the Underwriters may reasonably request.
(j) Subsequent to the Execution Time, there shall not have been any
decrease in the rating of any of the Company's debt securities by any
"nationally recognized statistical rating organization" (as defined for
purposes of Rule 436(g) under the Act) or any notice given of any intended
or potential decrease in any such rating or of a possible change in any
such rating that does not indicate the direction of the possible change.
(k) The Underwritten Securities shall have been listed and admitted
and authorized for trading on the Nasdaq National Market, and satisfactory
evidence of such actions shall have been provided to the Underwriters.
16
If any of the conditions specified in this Section 6 shall not have
been fulfilled when and as provided in this Agreement, or if any of the opinions
and certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Underwriters and counsel
for the Underwriters, this Agreement and all obligations of the Underwriters
hereunder may be canceled at, or at any time prior to, the Closing Date by the
Underwriters. Notice of such cancelation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6 shall be
delivered at the office of , counsel for the Underwriters, at , on the
Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale of the
Securities provided for herein is not consummated because any condition to the
obligations of the Underwriters set forth in Section 6 hereof is not satisfied,
because of any termination pursuant to Section 10 hereof or because of any
refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
severally through Citigroup Global Markets Inc. on demand for all out-of-pocket
expenses (including reasonable fees and disbursements of counsel) that shall
have been incurred by them in connection with the proposed purchase and sale of
the Securities.
8. Indemnification and Contribution. (a) The Company agrees to
indemnify and hold harmless each Underwriter, the directors, officers, employees
and agents of each Underwriter and each person who controls any Underwriter
within the meaning of either the Act or the Exchange Act against any and all
losses, claims, damages or liabilities, joint or several, to which they or any
of them may become subject under the Act, the Exchange Act or other Federal or
state statutory law or regulations, at common law or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in the registration statement for the registration of
the Underwritten Securities as originally filed or in any amendment thereof, or
in any Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are 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 agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action; provided, however, that the
Company will not be liable in any such case to the extent that any such loss,
claim, damage or liability arises out of or is based upon any such untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished to
the Company by or on behalf of any Underwriter through the Underwriters
specifically for inclusion therein. This indemnity agreement will be in addition
to any liability which the Company may otherwise have.
17
(b) Each Underwriter severally and not jointly agrees to indemnify
and hold harmless the Company, each of its directors, each of its officers who
signs the Registration Statement, and each person who controls the Company
within the meaning of either the Act or the Exchange Act, to the same extent as
the foregoing indemnity from the Company to each Underwriter, but only with
reference to written information relating to such Underwriter furnished to the
Company by or on behalf of such Underwriter through the Underwriters
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
any Underwriter may otherwise have. The Company acknowledges that the statements
set forth [in the last paragraph of the cover page regarding delivery of the
Underwritten Securities and, under the heading "Underwriting" or "Plan of
Distribution", (i) the list of Underwriters and their respective participation
in the sale of the Underwritten Securities, (ii) the sentences related to
concessions and reallowances and (iii) the paragraph related to stabilization,
syndicate covering transactions and penalty bids] in any Preliminary Prospectus
and the Prospectus constitute the only information furnished in writing by or on
behalf of the several Underwriters for inclusion in any Preliminary Prospectus
or the Prospectus.
(c) Promptly after receipt by an indemnified party under this
Section 8 of notice of the commencement of any action, such indemnified party
will, if a claim in respect thereof is to be made against the indemnifying party
under this Section 8, notify the indemnifying party in writing of the
commencement thereof; but the failure so to notify the indemnifying party (i)
will not relieve it from liability under paragraph (a) or (b) above unless and
to the extent it did not otherwise learn of such action and such failure results
in the forfeiture by the indemnifying party of substantial rights and defenses
and (ii) will not, in any event, relieve the indemnifying party from any
obligations to any indemnified party other than the indemnification obligation
provided in paragraph (a) or (b) above. The indemnifying party shall be entitled
to appoint counsel of the indemnifying party's choice at the indemnifying
party's expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided, however, that such counsel shall be satisfactory to the indemnified
party. Notwithstanding the indemnifying party's election to appoint counsel to
represent the indemnified party in an action, the indemnified party shall have
the right to employ separate counsel (including local counsel), and the
indemnifying party shall bear the reasonable fees, costs and expenses of such
separate counsel if (i) the use of counsel chosen by the indemnifying party to
represent the indemnified party would present such counsel with a conflict of
interest, (ii) the actual or potential defendants in, or targets of, any such
action include both the indemnified party and the indemnifying party and the
indemnified party shall have reasonably concluded that there may be legal
defenses available to it and/or other indemnified parties which are different
from or additional to those available to the indemnifying party, (iii) the
indemnifying party shall not have employed counsel satisfactory to the
indemnified party to represent the indemnified party within a reasonable time
after notice of the institution of such action or (iv) the indemnifying party
shall authorize the indemnified party to employ separate counsel at the expense
of the indemnifying party. An indemnifying party will not, without the prior
18
written consent of the indemnified parties, settle or compromise or consent to
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise or
consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in paragraph (a) or (b)
of this Section 8 is unavailable to or insufficient to hold harmless an
indemnified party for any reason, the Company and the Underwriters severally
agree to contribute to the aggregate losses, claims, damages and liabilities
(including legal or other expenses reasonably incurred in connection with
investigating or defending same) (collectively "Losses") to which the Company
and one or more of the Underwriters may be subject in such proportion as is
appropriate to reflect the relative benefits received by the Company on the one
hand and by the Underwriters on the other from the offering of the Underwritten
Securities; provided, however, that in no case shall any Underwriter (except as
may be provided in any agreement among underwriters relating to the offering of
the Underwritten Securities) be responsible for any amount in excess of the
underwriting discount or commission applicable to the Securities purchased by
such Underwriter hereunder. If the allocation provided by the immediately
preceding sentence is unavailable for any reason, the Company and the
Underwriters severally shall contribute in such proportion as is appropriate to
reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Underwriters on the other in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriters shall be
deemed to be equal to the total underwriting discounts and commissions, in each
case as set forth on the cover page of the Prospectus. Relative fault shall be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on the
one hand or the Underwriters on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriters agree that
it would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph(d), no person guilty of fraudulent misrepresentation (within the
meaning of Section 11(f) of the Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. For purposes of
this Section 8, each person who controls an Underwriter within the meaning of
either the Act or the Exchange Act and each director, officer, employee and
agent of an Underwriter shall have the same rights to contribution as such
Underwriter, and each person who controls the Company within the meaning of
either the Act or the Exchange Act, each officer of the Company who shall have
signed the Registration Statement and each director of the Company shall have
the same rights to contribution as the Company, subject in each case to the
applicable terms and conditions of this paragraph (d).
19
9. Default by an Underwriter. If any one or more Underwriters shall
fail to pay the Loan Fee for any of the Underwritten Securities agreed to be
acquired by such Underwriter or Underwriters hereunder and such failure shall
constitute a default in the performance of its or their obligations under this
Agreement, the remaining Underwriters shall be obligated severally to take up
and pay the Loan Fee in respect of (in the respective proportions which the
amount of Underwritten Securities set forth opposite their names in Schedule I
hereto bears to the aggregate amount of Underwritten Securities set forth
opposite the names of all the remaining Underwriters) the Underwritten
Securities which the defaulting Underwriter or Underwriters agreed but failed to
purchase; provided, however, that in the event that the aggregate amount of
Underwritten Securities which the defaulting Underwriter or Underwriters agreed
but failed to acquire shall exceed 10% of the aggregate amount of Underwritten
Securities set forth in Schedule I hereto, the remaining Underwriters shall have
the right to acquire all, but shall not be under any obligation to acquire any,
of the Underwritten Securities, and if such nondefaulting Underwriters do not
acquire all the Underwritten Securities, this Agreement will terminate without
liability to any nondefaulting Underwriter or the Company. In the event of a
default by any Underwriter as set forth in this Section 9, the Closing Date
shall be postponed for such period, not exceeding five Business Days, as the
Underwriters shall determine in order that the required changes in the
Registration Statement and the Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Underwriters, by notice given to the Company
prior to delivery of and payment for the Underwritten Securities, if at any time
prior to such time (i) trading in the Company's Common Stock shall have been
suspended by the Commission or the Nasdaq National Market or trading in
securities generally on the New York Stock Exchange or the Nasdaq National
Market shall have been suspended or limited or minimum prices shall have been
established the New York Stock Exchange or the Nasdaq National Market, (ii) a
banking moratorium shall have been declared either by Federal or New York State
authorities or (iii) there shall have occurred any outbreak or escalation of
hostilities, declaration by the United States of a national emergency or war, or
other calamity or crisis the effect of which on financial markets is such as to
make it, in the sole judgment of the Underwriters, impractical or inadvisable to
proceed with the offering or delivery of the Underwritten Securities as
contemplated by the Prospectus (exclusive of any supplement thereto)
11. Representations and Indemnities to Survive. The respective
agreements, representations, warranties, indemnities and other statements of the
Company or its officers and of the Underwriters set forth in or made pursuant to
this Agreement will remain in full force and effect, regardless of any
investigation made by or on behalf of any Underwriter or the Company or any of
the officers, directors, employees, agents or controlling persons referred to in
Section 8 hereof, and will survive delivery of and payment for the Underwritten
Securities. The provisions of Section 7 and 8 hereof shall survive the
termination or cancelation of this Agreement.
20
12. Notices. All communications hereunder will be in writing and
effective only on receipt, and, if sent to the Underwriters, will be mailed,
delivered or telefaxed to the Citigroup Global Markets Inc. General Counsel (fax
no.: (000) 000-0000) and confirmed to the General Counsel, Citigroup Global
Markets Inc., at 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention:
General Counsel; or, if sent to the Company, will be mailed, delivered or
telefaxed to and confirmed to it at , attention of the Legal Department.
13. Successors. This Agreement will inure to the benefit of and be
binding upon the parties hereto and their respective successors and the
officers, directors, employees, agents and controlling persons referred to in
Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or more
counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for convenience
only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in this
Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations of the Commission promulgated thereunder.
"Business Day" shall mean any day other than a Saturday, a Sunday or
a legal holiday or a day on which banking institutions or trust companies
are authorized or obligated by law to close in New York City.
"Commission" shall mean the Securities and Exchange Commission.
"Effective Date" shall mean each date and time that the Registration
Statement, any post-effective amendment or amendments thereto and any Rule
462(b) Registration Statement became or become effective.
"Exchange Act" shall mean the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the Commission promulgated
thereunder.
"Execution Time" shall mean the date and time that this Agreement is
executed and delivered by the parties hereto.
21
"Preliminary Prospectus" shall mean any preliminary prospectus
referred to in paragraph 1(a) above and any preliminary prospectus
included in the Registration Statement at the Effective Date that omits
Rule 430A Information.
"Prospectus" shall mean the prospectus relating to the Underwritten
Securities that is first filed pursuant to Rule 424(b) after the Execution
Time or, if no filing pursuant to Rule 424(b) is required, shall mean the
form of final prospectus relating to the Underwritten Securities included
in the Registration Statement at the Effective Date.
"Registration Statement" shall mean the registration statement
referred to in paragraph 1(a) above, including exhibits and financial
statements, as amended at the Execution Time (or, if not effective at the
Execution Time, in the form in which it shall become effective) and, in
the event any post-effective amendment thereto or any Rule 462(b)
Registration Statement becomes effective prior to the Closing Date, shall
also mean such registration statement as so amended or such Rule 462(b)
Registration Statement, as the case may be. Such term shall include any
Rule 430A Information deemed to be included therein at the Effective Date
as provided by Rule 430A.
"Rule 424", "Rule 430A" and "Rule 462" refer to such rules under the
Act.
"Rule 430A Information" shall mean information with respect to the
Underwritten Securities and the offering thereof permitted to be omitted
from the Registration Statement when it becomes effective pursuant to Rule
430A.
"Rule 462(b) Registration Statement" shall mean a registration
statement and any amendments thereto filed pursuant to Rule 462(b)
relating to the offering covered by the registration statement referred to
in Section 1(a) hereof.
22
23
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us the enclosed duplicate hereof, whereupon
this letter and your acceptance shall represent a binding agreement among the
Company and the several Underwriters.
Very truly yours,
Charter Communications, Inc.
By: __________________________
Name:
Title:
24
The foregoing Agreement is hereby
confirmed and accepted as of the
date first above written.
Citigroup Global Markets Inc.
By: Citigroup Global Markets Inc.
By: _______________________________
Name:
Title:
SCHEDULE I
Number of Underwritten Securities
Underwriters to be Issued to Underwriter
------------ ---------------------------------
Citigroup Global Markets Inc. ......
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Total....................... =========
