EXHIBIT 1.3
UNDERWRITING AGREEMENT
(Preferred Securities)
------- --, ----
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Corporation Trust [_] (the "Issuer Trust"), a statutory business trust
created under the Delaware Business Trust Act, proposes to issue and sell
[number and title of securities] Guaranteed Trust Preferred Securities (the
"Firm Preferred Securities"). The Issuer Trust also proposes to issue and sell
to the several Underwriters not more than the number of shares of its
Guaranteed Trust Preferred Securities identified as Additional Preferred
Securities herein (the "Additional Preferred Securities") if and to the extent
that we, as Manager of the offering, shall have determined to exercise, on
behalf of the Underwriters, the right to purchase such Additional Preferred
Securities granted to the Underwriters herein. The Firm Preferred Securities
and the Additional Preferred Securities are hereinafter collectively referred
to as the "Offered Preferred Securities."
It is understood that substantially contemporaneously with the closing
of the sale of the Offered Preferred Securities to the Underwriters
contemplated hereby, (i) the Issuer Trust, its trustees (the "Issuer Trustees")
and Comcast Corporation (the "Company") shall enter into an Amended and
Restated Trust Agreement in substantially the form of the Form of the Amended
and Restated Trust Agreement attached as Exhibit [___] to the Registration
Statement referred to below (the "Trust Agreement"), pursuant to which the
Issuer Trust shall (x) issue and sell the Offered Preferred Securities to the
Underwriters pursuant hereto and (y) issue [___] shares of its Common
Securities (the "Common Securities" and, together with the Offered Preferred
Securities, the "Trust Securities") to the Company, in each case with such
rights and obligations as shall be set forth in such Trust Agreement, (ii) the
Company and Bankers Trust Company, as Trustee, acting pursuant to a
Subordinated Indenture dated as of June __, 1999 shall provide for the issuance
of $[___] principal amount of the Company's [__]% Subordinated [Deferrable
Interest] Debt Securities due [____] (the "Subordinated Debt Securities"),
(iii) the Company shall sell such Subordinated Debt Securities to the Issuer
Trust and the Issuer Trust shall purchase such Subordinated Debt Securities
with proceeds of the sale of the
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Offered Preferred Securities to the Underwriters contemplated hereby and of the
Common Securities to the Company and (iv) the Company and [____], as Guarantee
Trustee, shall enter into a Guarantee Agreement in substantially the form of
the Form of the Guarantee Agreement attached as Exhibit [ ] of the Registration
Statement referred to below (the "Guarantee") for the benefit of holders from
time to time of the Offered Preferred Securities.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Issuer Trust hereby agrees to sell and the Underwriters
agree to purchase, severally and not jointly, the aggregate number of Firm
Preferred Securities set forth below opposite their names at a purchase price
of $[____] per Firm Preferred Security (the "Purchase Price"):
Number of
Firm Preferred Securities
Underwriter To Be Purchased
[Insert syndicate list]
-----------------
Total...... =================
Subject to the terms and conditions set forth or incorporated by
reference herein, the Issuer Trust hereby agrees to sell to the Underwriters
the Additional Preferred Securities and the Underwriters shall have a one-time
right to purchase, severally and not jointly, up to the number of Additional
Preferred Securities set forth below at the Purchase Price [plus accrued
dividends, if any, from [ ] to the date of payment and delivery.] Additional
Preferred Securities may be purchased as provided herein solely for the purpose
of covering over-allotments made in connection with the offering of the Firm
Preferred Securities. If any Additional Preferred Securities are to be
purchased, each Underwriter agrees, severally and not jointly, to purchase the
number of Additional Preferred Securities (subject to such adjustments to
eliminate fractional Additional Preferred Securities as you may determine) that
bears the same proportion to the total number of Additional Preferred
Securities to be purchased as the number of Firm
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Preferred Securities set forth above opposite the name of such Underwriter
bears to the total number of Firm Preferred Securities.
The Underwriters will pay for the Firm Preferred Securities upon
delivery thereof at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx at 10:00 a.m. (New York time) on , , or at such other time,
not later than 5:00 p.m. (New York time) on , , as shall be designated in
writing by the Underwriters and the Company. The time and date of such payment
and delivery are hereinafter referred to as the Closing Date.
Payment for any Additional Preferred Securities shall be made to the
Issuer Trust in immediately available funds at the offices referred to above at
10:00 A.M. (New York time) on such date (which may be the same as the Closing
Date but shall in no event be earlier than the Closing Date nor later than ten
business days after the giving of the notice hereinafter referred to) as shall
be designated in a written notice from us to the Company of our determination,
on behalf of the Underwriters, to purchase a number, specified in said notice,
of Additional Preferred Securities, as shall be designated in writing by us.
The time and date of such payment are hereinafter referred to as the "Option
Closing Date." The notice of the determination to exercise the option to
purchase Additional Preferred Securities and of the Option Closing Date may be
given at any time within 30 days after the date of the Underwriting Agreement.
The Offered Securities shall have the terms set forth in the
Prospectus dated [June__], 1999, and the Prospectus Supplement dated , ,
including the following:
Terms of Offered Preferred Securities
Designation of the Series of the Offered Preferred Securities:
Issuer of Offered Preferred Securities: Comcast Corporation Trust [__]
Aggregate Number of Firm Preferred Securities:
Aggregate Number of Additional Preferred Securities:
Price to Public:
Purchase Price:
Underwriters' Compensation per Offered Preferred Security:
Closing Date:
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Form:
Other Terms:
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement referred to
above.
Except as set forth below, all provisions contained in the document
entitled Underwriting Agreement Standard Provisions dated [June __], 1999
relating to the Preferred Securities of Comcast Corporation Trust I, Comcast
Corporation Trust II and Comcast Corporation Trust III (fully and
unconditionally guaranteed to the extent described therein by Comcast
Corporation (the "Standard Provisions"), a copy of which is attached hereto,
are herein incorporated by reference in their entirety and shall be deemed to
be a part of this Agreement to the same extent as if such provisions had been
set forth in full herein, except that if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control.
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Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [________]
By:
-----------------------------------
Name:
Title:
Accepted:
COMCAST CORPORATION
By:
------------------------------------
Name:
Title:
COMCAST CORPORATION TRUST [ ]
By:
------------------------------------
Name:
Title: Regular Trustee
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COMCAST CORPORATION
COMCAST CORPORATION TRUST I
COMCAST CORPORATION TRUST II
COMCAST CORPORATION TRUST III
PREFERRED SECURITIES
(Fully and unconditionally guaranteed, to the extent described herein, by
Comcast Corporation)
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
[June __], 1999
From time to time, Comcast Corporation, a Delaware corporation (the
"Company"), may, together with any one of Comcast Corporation Trust I, Comcast
Corporation Trust II, Comcast Corporation Trust III (each an "Issuer Trust,"
and collectively the "Issuer Trusts"), enter into one or more underwriting
agreements that provide for the sale of designated securities to the several
underwriters named therein. The standard provisions set forth herein may be
incorporated by reference in any such underwriting agreement (an "Underwriting
Agreement"). The Underwriting Agreement, including the provisions incorporated
therein by reference, is herein referred to as this Agreement. Terms defined in
the Underwriting Agreement are used herein as therein defined.
The Company proposes from time to time to cause one or more of the
Issuer Trusts to issue its guaranteed trust preferred securities ("Preferred
Securities") guaranteed by the Company to the extent described in the
Prospectus (as defined below) with respect to distributions and amounts payable
upon liquidation or redemption pursuant to a Preferred Securities Guarantee
Agreement to be dated as of a date specified in the Underwriting Agreement
executed and delivered by the Company and [_______], as trustee (the "Guarantee
Trustee"), for the benefit of the holders from time to time of the Preferred
Securities (the "Guarantee").
If the Company proposes to issue Preferred Securities, the specified
Issuer Trust will use the proceeds from the sale of the Preferred Securities
and the sale of Common Securities (as defined below) to purchase from the
Company an aggregate principal
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amount of its Subordinated [Deferrable Interest] Debt Securities (the
"Subordinated Debt Securities") equal to the aggregate liquidation amount of
the Preferred Securities and Common Securities issued by such Issuer Trust. The
Subordinated Debt Securities will be issued under a Subordinated Indenture to
be dated as of June __, 1999 between the Company and Bankers Trust Company, as
trustee (the "Debt Securities Trustee") (as amended and supplemented from time
to time the "Subordinated Indenture"). With respect to any issuance of
Preferred Securities by an Issuer Trustee, the Company will also be the holder
of one hundred percent of the common securities representing undivided
beneficial interests in the assets of the specified Issuer Trust (the "Common
Securities" and together with the Preferred Securities, the "Trust
Securities"). Each Issuer Trust will have been created under Delaware law
pursuant to the filing of a Certificate of Trust (each, a "Certificate of
Trust") with the Secretary of State of the State of Delaware, and will be
governed by an Amended and Restated Trust Agreement (each, a "Trust Agreement")
among the Company, as depositor, [________], as Institutional Trustee (the
"Institutional Trustee"), [__________], as Delaware Trustee (the "Delaware
Trustee") (collectively, the "Issuer Trustees"), and two individuals who will
be selected by the holders of the Common Securities and the holders from time
to time of the Trust Securities. The Company, as holder of the Common
Securities of each Issuer Trust, has appointed the Issuer Trustees and two
individuals who are employees or officers of or affiliated with the Company to
act as administrators with respect to the Issuer Trust (the "Administrators").
[_________], as Institutional Trustee, will act as Indenture Trustee for the
purposes of the Trust Indenture Act of 1939, as amended (the "Trust Indenture
Act").
The Company and the Issuer Trusts have filed with the Securities and
Exchange Commission (the "Commission") a registration statement including a
prospectus relating to the Subordinated Debt Securities, the Preferred
Securities and the Guarantee (collectively, the "Securities") and has filed
with, or transmitted for filing to, or shall promptly hereafter file with or
transmit for filing to, the Commission a prospectus supplement (the "Prospectus
Supplement") pursuant to Rule 424 under the Securities Act of 1933, as amended
(the "Securities Act"), specifically relating to the Securities offered
pursuant to this Agreement ("Offered Preferred Securities" and the "Offered
Guarantee" and, together, the "Offered Securities"). The term Registration
Statement means the registration statement as amended to the date of this
Agreement including any additional registration statement filed by the Company
pursuant to Rule 462(b). The term Basic Prospectus means the prospectus
included in the Registration Statement. The term Prospectus means the Basic
Prospectus together with the Prospectus Supplement. The term preliminary
prospectus means a preliminary prospectus supplement specifically relating to
the Offered Securities, together with the Basic Prospectus. As used herein, the
terms "Basic Prospectus", "Prospectus" and "preliminary prospectus" shall
include in each case the documents, if any, incorporated by reference therein.
The terms "supplement", "amendment" and "amend" as used herein shall include
all documents deemed to be incorporated by reference in the Prospectus that are
filed subsequent to the
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date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act").
1. Representations and Warranties. Each of the specified Issuer
Trust and the Company jointly and severally represents and warrants to each of
the Underwriters as of the date of the Underwriting Agreement that (i) each
document filed or to be filed pursuant to the Exchange Act and incorporated by
reference in the Prospectus complied or will comply when so filed in all
material respects with the Exchange Act and the rules and regulations of the
Commission thereunder and (ii) the Registration Statement and Prospectus comply
in all material respects with the Securities Act and the rules and regulations
of the Commission thereunder and do not 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, except that the
foregoing representations and warranties do not apply to (a) that part of the
Registration Statement which shall constitute the Statement of Eligibility of
the Trustee on Form T-1 (the "Form T-1") and (b) statements or omissions in the
Registration Statement or the Prospectus or any amendment or supplement thereto
based upon information furnished to the Company in writing by any Underwriter
through the Manager expressly for use therein.
2. Public Offering. The Issuer Trust and the Company are advised by
the Manager that the Underwriters propose to make a public offering of their
respective portions of the Offered Securities as soon after this Agreement has
been entered into as in the Manager's judgment is advisable. The terms of the
public offering of the Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this
Section 3, payment for the Offered Securities shall be made to the Issuer Trust
or the Company, as applicable, in immediately available funds at the time and
place set forth in the Underwriting Agreement, upon delivery to the Manager for
the respective accounts of the several Underwriters of the Offered Securities
registered in such names and in such denominations or amounts, as the case may
be, as the Manager shall request in writing not less than one full business day
prior to the date of delivery, with any transfer taxes payable in connection
with the transfer of the Offered Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the
Underwriters hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall be in effect, and no proceedings for
such purpose shall be pending before or threatened by the Commission,
and there shall have been no material adverse change in the
condition, business or operations of the Company and its
subsidiaries, as a whole, or, with respect to an offering of
Preferred Securities, the
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Issuer Trust, from that set forth in the Prospectus; and the Manager
shall have received, on the Closing Date, a certificate, dated the
Closing Date and signed by an executive officer of the Company, to the
foregoing effect. Such certificate will also provide that the
representations and warranties of the Company and, in the case of an
offering of Preferred Securities, the Issuer Trust, contained herein
are true and correct as of the Closing Date. The officer making such
certificate may rely upon the best of his knowledge as to proceedings
threatened.
(b) The Manager shall have received on the Closing Date an
opinion of Xxxxxx X. Block, Esquire, Senior Deputy General Counsel of
the Company, dated the Closing Date to the effect that:
(i) the Company has been duly incorporated, is validly
existing as a corporation subsisting under the laws of the
Commonwealth of Pennsylvania and is duly qualified to
transact business and is in good standing in each
jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification
(except where the failure to so qualify would not have a
material adverse effect upon the business or financial
condition of the Company and its subsidiaries, as a whole),
(ii) each of Comcast Cable Communications, Inc. and QVC,
Inc. (such corporations are together the "specified
subsidiaries" of the Company and each is a "specified
subsidiary" of the Company) has been duly incorporated, is
validly existing as a corporation in good standing under the
laws of the jurisdiction of its incorporation and is duly
qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification
(except where the failure to so qualify would not have a
material adverse effect upon the business or financial
condition of the Company and its subsidiaries, as a whole),
(iii) the Subordinated Debt Securities have been duly
authorized by the Company,
(iv) the Guarantee has been duly authorized, executed and
delivered by the Company,
(v) this Agreement has been duly authorized, executed and
delivered by the Company,
(vi) except as rights to indemnity and contribution under
this Agreement may be limited under applicable law, the
execution and
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delivery by the Issuer Trust of, and the performance of the
Issuer Trust's obligations under, this Agreement and the
execution and delivery by the Company of, and the performance
by the Company of its obligations under, this Agreement, the
Subordinated Indenture, the Trust Agreement and the Guarantee
will not contravene any provision of applicable law of the
United States (except with respect to laws relating
specifically to the cable communications industry, as to
which such counsel is not called upon to express any
opinion), Pennsylvania, or, to the best knowledge of such
counsel, of any other state or jurisdiction of the United
States or of any foreign jurisdiction (in which foreign
jurisdiction the Company or any specified subsidiary does
business which is material to the Company and its
subsidiaries, as a whole), or the articles of incorporation
or by-laws of the Company or, to the best knowledge of such
counsel, any agreement or other instrument binding upon the
Company or the Issuer Trust, and, except for the orders of
the Commission making the Registration Statement effective
and the Subordinated Indenture qualified under the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act")
(which have been obtained) and such permits or similar
authorizations required under the securities or Blue Sky laws
of certain states or foreign jurisdictions (as to which such
counsel is not called upon to express any opinion), no
consent, approval or authorization of any governmental body
or agency of the United States (except with respect to
consents, approvals and authorizations relating specifically
to the cable communications industry, as to which such
counsel is not called upon to express any opinion),
Pennsylvania, or, to the best knowledge of such counsel, of
any other state or jurisdiction of the United States or of
any foreign jurisdiction is required for the performance by
the Issuer Trust of its obligations under this Agreement or
by the Company of its obligations under this Agreement, the
Subordinated Indenture, the Trust Agreement and the
Guarantee,
(vii) subject to such qualification as may be set forth in
the Prospectus, the Company and its subsidiaries have, and
are in material compliance with, such franchises, and to the
best knowledge of such counsel after reasonable
investigation, such licenses and authorizations, as are
necessary to own their cable communications properties and to
conduct their cable communications business in the manner
described in the Prospectus, except where the failure to
have, or comply with, such franchises, licenses and
authorizations would not have a material adverse effect on
the business or financial condition of the Company and its
subsidiaries, as a whole, and such franchises, licenses and
authorizations contain no materially burdensome restrictions
not adequately described in the Prospectus, which
restrictions would have a material adverse effect on
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the business or financial condition of the Company and its
subsidiaries, as a whole,
(viii) the statements (A) in Item 3 of the Company's most
recent Annual Report on Form 10-K incorporated by reference
in the Prospectus, (B) in Part II, Item 1 under the caption
"Legal Proceedings" of the Company's most recent Quarterly
Report on Form 10-Q incorporated by reference in the
Prospectus and (C) in the Registration Statement in Item 15,
insofar as such statements constitute a summary of the legal
matters, documents or proceedings referred to therein, fairly
present the information called for with respect to such legal
matters, documents and proceedings, and
(ix) such counsel does not know of any legal or
governmental proceeding pending or threatened to which the
Company or any of its subsidiaries or the Issuer Trust is a
party or to which any of the properties of the Company or any
of its subsidiaries is subject which is required to be
described in the Registration Statement or the Prospectus and
is not so described or of any contract or other document
which is required to be described in the Registration
Statement or the Prospectus or to be filed as an exhibit to
the Registration Statement which is not described or filed as
required.
Such counsel shall also state that no facts have come to his attention
that lead him to believe (1) that the Registration Statement or any amendments
thereto (except for the financial statements and other financial or statistical
data included or incorporated by reference therein or omitted therefrom and the
Form T-1, as to which such counsel is not called upon to express any belief),
on the date on which it became effective or the date of filing of the most
recent subsequent Annual Report on Form 10-K, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (2) that
the Prospectus, as amended or supplemented, if applicable (except for the
financial statements and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, as to which such
counsel is not called upon to express any belief), at the date of the
Underwriting Agreement or at the Closing Date contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; or (3) that the
documents incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel is not called
upon to express any belief), as of the dates they were filed with the
Commission, contained an untrue statement of a material fact or omitted to
state a
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material fact necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
With respect to the preceding paragraph, such counsel may state that
his opinion and belief is based upon his participation in the preparation of
the Registration Statement, Prospectus (as amended or supplemented) and the
documents incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification except as
specified.
In expressing his opinion as to questions of the law of jurisdictions
other than the Commonwealth of Pennsylvania and the United States, such counsel
may rely to the extent reasonable on such counsel as may be reasonably
acceptable to counsel to the Underwriters. In addition, such counsel may
reasonably rely as to questions of fact on certificates of responsible officers
of the Company.
(c) The Manager shall have received on the Closing Date an
opinion of Xxxxx Xxxx & Xxxxxxxx, special counsel for the Company,
dated the Closing Date to the effect that:
(i) assuming the Subordinated Debt Securities have been
duly authorized by the Company, the Subordinated Debt
Securities, when executed and authenticated in accordance with
the provisions of the relevant Subordinated Indenture, and
delivered to and paid for as described in the Prospectus will be
entitled to the benefits of the Subordinated Indenture, and will
be valid and binding obligations of the Company, in each case
enforceable in accordance with their respective terms (subject,
as to enforcement of remedies, to applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting creditors' rights generally from time to time in
effect and to general equity principles),
(ii) assuming the Guarantee has been duly authorized,
executed and delivered by the Company, the Guarantee is a valid
and binding obligation of the Company enforceable in accordance
with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally from
time to time in effect and to general equity principles),
(iii) the Subordinated Indenture has been duly qualified
under the Trust Indenture Act,
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(iv) except as rights to indemnity and contribution under
this Agreement may be limited under applicable law, the
execution and delivery by the Issuer Trust of, and the
performance of its obligations under, this Agreement and the
execution and delivery by the Company of, and the performance by
the Company of its obligations under, this Agreement, the
Subordinated Indenture, the Trust Agreement and the Guarantee
will not contravene any provision of applicable law of the
United States (except with respect to laws relating specifically
to the cable communications industry, as to which such counsel
is not called upon to express any opinion), or New York and,
except for the orders of the Commission making the Registration
Statement effective and the Subordinated Indenture qualified
under the Trust Indenture Act (which have been obtained) and
such permits or similar authorizations required under the
securities or Blue Sky laws of certain states or foreign
jurisdictions (as to which such counsel is not called upon to
express any opinion), no consent, approval or authorization of
any governmental body or agency of the United States (except
with respect to consents, approvals and authorizations relating
specifically to the cable communications industry, as to which
such counsel is not called upon to express any opinion), or New
York is required for the performance by the Issuer Trust of its
obligations under this Agreement or by the Company of its
obligations under this Agreement, the Subordinated Indenture,
the Trust Agreement and the Guarantee,
(v) the Issuer Trust is not and, after giving effect to the
offering and sale of the Offered Preferred Securities and the
application of the proceeds thereof as described in the
Prospectus, will not be an "investment company" as such term is
defined in the Investment Company Act of 1940 as amended, and
(vi) the statements in the Prospectus Supplement under
"Description of [the Offered Securities]", "Certain U.S. Tax
Considerations" and "Underwriting" and in the Basic Prospectus
under "Description of [the Offered Securities]", "United States
Taxation" and "Plan of Distribution", insofar as such statements
constitute a summary of the legal matters or documents referred
to therein, fairly present the information called for with
respect to such legal matters and documents.
Such counsel shall also state that no facts have come to the attention
of such counsel that lead them to believe (1) that the Registration Statement
and the Prospectus and any supplements or amendments thereto or the documents
incorporated by reference in the Registration Statement and Prospectus (except
for financial statements and other financial or statistical data included or
incorporated by reference therein and the Form T-1,
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as to which such counsel is not called upon to express any belief) did not
comply as to form in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder; (2) that the Registration
Statement or any amendment thereto (except for the financial statements and
other financial or statistical data included or incorporated by reference
therein or omitted therefrom and the Form T-1, as to which such counsel is not
called upon to express any belief) at the date of the Underwriting Agreement
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading; or (3) that the Prospectus, as amended or supplemented, if
applicable (except for the financial statements and other financial or
statistical data included or incorporated by reference therein or omitted
therefrom, as to which such counsel is not called upon to express any belief),
at the date of the Underwriting Agreement or at the Closing Date contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
With respect to the preceding paragraph, Xxxxx Xxxx & Xxxxxxxx may
state that their opinion and belief is based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but is without independent check
or verification except as specified.
(d) The Manager shall have received on the Closing Date an
opinion of Dow, Xxxxxx and Xxxxxxxxx, PLLC special counsel for the
Company, dated the Closing Date, to the effect that:
(i) no approval of the Federal Communications Commission
(the "FCC") is required in connection with the issuance and
sale of the Offered Securities,
(ii) the execution and delivery by the Issuer Trust of
this Agreement and the execution and delivery by the Company
of this Agreement, the Subordinated Indenture, the Trust
Agreement and the Guarantee and the fulfillment of the terms
set forth herein by the Issuer Trust and of the terms set
forth herein and in the Subordinated Indenture, the Trust
Agreement and the Guarantee by the Company and the
consummation of the transactions contemplated hereby by the
Issuer Trust and of the transactions contemplated hereby and
under the Subordinated Indenture, the Trust Agreement and
Guarantee by the Company do not violate any statute,
regulation or other law of the United States relating
specifically to the cable communications industry (except as
otherwise explicitly set forth in the Prospectus) or, to the
knowledge of such
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counsel, any order, judgment or decree of any court or
governmental body of the United States relating specifically
to the cable communications industry and applicable to the
Issuer Trust, the Company or any of its subsidiaries, and
which violation would have a material adverse effect on the
business or financial condition of the Issuer Trust or
Company and its subsidiaries, as a whole,
(iii) the statements in the Company's most recent Annual
Report on Form 10-K incorporated by reference in the
Registration Statement and Prospectus [identify sections
describing cable regulatory matters] as updated by the
Company's most recent Quarterly Reports on Form 10-Q
incorporated in the Registration Statement and Prospectus and
as updated by the Prospectus, insofar as they are, or refer
to, statements of federal law or legal conclusions, have been
reviewed by such counsel and present in all material respects
the information called for with respect to such statements of
federal law or legal conclusions, and
(iv) such counsel does not know of any proceeding pending
before the FCC to which the Company or any of its
subsidiaries is a party or involving the cable communications
properties, licenses or authorizations of the Company and its
subsidiaries, or of any cable communications law or
regulation relevant thereto required to be described in the
Registration Statement or Prospectus pursuant to Regulation
S-K promulgated under the Securities Act, which is not
described as required.
(e) The Manager shall have received on the Closing Date an
opinion of Xxxxxx Xxxxxx & Xxxxxxx (a partnership including a
professional organization), counsel for the Underwriters, dated the
Closing Date, covering the matters requested by and in form and
substance reasonably satisfactory to the Manager.
(f) The Manager shall have received on the Closing Date an
opinion dated the Closing Date of [Xxxxxxxx, Xxxxxx & Finger, P.A.],
special Delaware counsel for the Issuer Trust or the Company, or of
other counsel satisfactory to the Manager, to the effect that:
(i) the Issuer Trust has been duly created and is
validly existing in good standing as a business trust under
the Delaware Business Trust Act and under the Trust Agreement
and the Delaware Business Trust Act and has the trust power
and authority to conduct its business, all as described in
the Registration Statement and Prospectus;
10
(ii) assuming due authorization, execution and delivery
of the Trust Agreement by the Company, the Administrators and
the Issuer Trustees, the Trust Agreement is a legal, valid
and binding agreement of the Company, the Administrators and
the Issuer Trustees and is enforceable against the Company,
the Administrators and the Issuer Trustees, in accordance
with its terms, subject, as to enforcement, to the effect
upon the Trust Agreement of (i) bankruptcy, insolvency,
moratorium, receivership, reorganization, liquidation,
fraudulent conveyance and transfer, and other similar laws
relating to or affecting the rights and remedies of creditors
generally, (ii) principles of equity, including applicable
law relating to fiduciary duties (regardless of whether
considered and applied in a proceeding in equity or at law),
and (iii) the effect of applicable public policy on the
enforceability of provisions relating to indemnification or
contribution;
(iii) under the Trust Agreement and the Delaware Business
Trust Act, the execution and delivery of this Agreement by
the Issuer Trust, and the performance by the Issuer Trust of
its obligations hereunder, have been duly authorized by all
necessary trust action on the part of the Issuer Trust;
(iv) the Preferred Securities have been duly authorized
by the Trust Agreement and are duly and validly issued and,
subject to the qualifications set forth herein, will be fully
paid and nonassessable undivided beneficial interests in the
assets of the Issuer Trust; the holders of Preferred
Securities, as beneficial owners of the Issuer Trust, will be
entitled to the same limitation of personal liability
extended to stockholders of private corporations for profit
organized under the General Corporation Law of the State of
Delaware;
(v) the Common Securities have been duly authorized by
the Trust Agreement and are duly and validly issued undivided
beneficial interests in the assets of the Trust;
(vi) under the Trust Agreement and the Delaware Business
Trust Act, the issuance of the Trust Securities is not
subject to preemptive rights;
(vii) the statements in the Basic Prospectus under the
caption ["Trust Subsidiaries" and "Description of the
Guaranteed Trust Preferred Securities"] insofar as such
statements constitute statements of Delaware law, are fairly
presented;
(viii) the issuance and the sale of the Trust Securities by
the Issuer Trust, the execution, delivery and performance by
the Issuer Trust of this
11
Agreement, the consummation by the Issuer Trust of the
transactions contemplated hereby and compliance by the Issuer
Trust with its obligations hereunder do not violate (A) the
Certificate or the Trust Agreement, or (B) any applicable
Delaware law or Delaware administrative regulation;
(ix) after due inquiry, limited to, and solely to the
extent disclosed on a date immediately prior to the Closing
Date, the court dockets for active cases of the Court of
Chancery of the State of Delaware in and for New Castle
County, Delaware, of the Superior Court of the State of
Delaware in and for New Castle County, Delaware, and of the
United States Federal District Court sitting in the State of
Delaware, we do not know of any legal or governmental
proceeding pending against the Issuer Trust;
(x) no authorization, approval, consent or order of any
Delaware court or any Delaware governmental authority or
Delaware agency is required to be obtained by the Issuer
Trust solely in connection with the issuance and sale of the
Trust Securities; and
(xi) the Offered Preferred Security Holders (other than
those Offered Preferred Security Holders who reside or are
domiciled in the State of Delaware) will have no liability
for income taxes imposed by the State of Delaware solely as a
result of their participation in the Issuer Trust, and the
Issuer Trust will not be liable for any income tax imposed by
the State of Delaware.
In rendering such opinion, such counsel may note that Holders of Trust
Securities may be obligated, pursuant to the Trust Agreement, to (i) provide
indemnity and security in connection with and pay taxes or other governmental
charges arising from transfers of certificates for Trust Securities and the
issuance of replacement certificates for Trust Securities, (ii) provide
security and indemnity in connection with requests of or directions to the
Institutional Trustee to exercise its rights and remedies under the Trust
Agreement and (iii) undertake as a party litigant to pay costs in any suit for
the enforcement of any right or remedy under the Trust Agreement or against the
Institutional Trustee, to the extent provided in the Trust Agreement.
(g) The Manager shall have received on the Closing Date, a
letter dated the Closing Date, in each case in form and substance
satisfactory to the Manager, from Deloitte & Touche LLP, independent
public accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements and
12
certain financial information contained in or incorporated by
reference in the Registration Statement and the Prospectus.
(h) The Manager shall have received on the date hereof or on the
Closing Date, as applicable, such additional documents as the Manager
shall have reasonably requested to confirm compliance with the
conditions to Closing listed herein.
The several obligations of the Underwriters to purchase Additional
Preferred Securities hereunder are subject to the delivery to the Manager on
the Option Closing Date of such opinions, certificates and documents as are
contemplated for the Closing of the Firm Preferred Securities.
5. Covenants of the Company and the Issuer Trust. In further
consideration of the agreements of the Underwriters contained herein, each of
the Company and the Issuer Trust covenants as follows:
(a) To furnish to the Manager, without charge, a copy of the
Registration Statement and two signed copies of any post-effective
amendment thereto specifically relating to the Offered Securities
(including exhibits thereto and documents incorporated therein by
reference) and, during the period mentioned in paragraph (c) below,
as many copies of the Prospectus, any documents incorporated therein
by reference and any supplements and amendments thereto as the
Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus, to furnish the Manager a copy of each such
proposed amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities during which in the opinion of
counsel to the Manager the Prospectus is required by law to be
delivered in connection with sales by an Underwriter or dealer, any
event shall occur as a result of which it is necessary to amend or
supplement the Prospectus in order to make the statements therein, in
the light of the circumstances existing at the time, not misleading,
forthwith to prepare and furnish, at its expense, to the Underwriters
and to the dealers (whose names and addresses the Manager will
furnish to the Company) to which Offered Securities may have been
sold by the Manager on behalf of the Underwriters and to any other
dealers on request, either amendments or supplements to the
Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing at
the time, be misleading.
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(d) To endeavor to qualify the Offered Securities[, the
Preferred Securities and the Guarantees] for offer and sale under the
securities or Blue Sky laws of such U.S. jurisdictions as the Manager
shall reasonably request.
(e) To make generally available to the Company's security
holders as soon as practicable an earnings statement covering the
twelve month period beginning on the first day of the first fiscal
quarter commencing after the date hereof, which shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (which may be accomplished
by making generally available the Company's financial statements in
the manner provided for by Rule 158 of the Securities Act).
(f) To comply with all provisions of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida) relating to doing business
with Cuba.
[(g) During the period beginning on the date of the Underwriting
Agreement and continuing to and including the Closing Date [or the
Option Closing Date, as the case may be], not to offer, sell,
contract to sell or otherwise dispose of any debt securities of the
Company or any securities with characteristics similar to those of
the Preferred Securities (other than (i) the Offered Securities and
(ii) commercial paper issued in the ordinary course of business),
without the prior written consent of the Manager.]
6. Indemnification and Contribution. The Company, or in the case of
an offering of Preferred Securities, each of the Company and the Issuer Trust
jointly and severally, agrees to indemnify and hold harmless each Underwriter
and each person, if any, who controls each Underwriter within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act from
and against any and all losses, claims, damages and liabilities caused by any
untrue statement or alleged untrue statement of a material fact contained in
the Registration Statement or the Prospectus (as amended or supplemented) or
any preliminary prospectus, or caused by any omission or alleged omission to
state therein a material fact necessary to make the statements therein not
misleading, except insofar as such losses, claims, damages or liabilities are
caused by any such untrue statement or omission or alleged untrue statement or
omission based upon information furnished to the Company and the Issuer Trust
in writing by such Underwriter through the Manager expressly for use therein;
provided, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Offered Securities, or any person controlling any such Underwriter,
if a copy of the Prospectus (as then amended or supplemented) was not sent or
given by or on behalf of such Underwriter to such person, if required by law so
to have been delivered, at or prior to the written confirmation of the sale of
the Offered Securities to such person, and if the Prospectus (as so amended or
supplemented but
14
without reference to documents incorporated by reference therein) would have
cured the defect giving rise to such loss, claim, damage or liability.
Each Underwriter agrees to indemnify and hold harmless the Issuer
Trust, the Issuer Trustees, the Administrators, the Company, the Company's
directors, the Company's officers who sign the Registration Statement and each
person, if any, who controls the Issuer Trust or the Company within the meaning
of either Section 15 of the Securities Act or Section 20 of the Exchange Act to
the same extent as the foregoing indemnity from the Company and the Issuer
Trust to such Underwriter, but only with reference to information relating to
such Underwriter furnished to the Company or the Issuer Trust in writing by
such Underwriter through the Manager expressly for use in the Registration
Statement, the Prospectus, any amendment or supplement thereto, or any
preliminary prospectus.
In case any proceeding (including any governmental investigation)
shall be instituted involving any person in respect of which indemnity may be
sought pursuant to either of the two preceding paragraphs, such person
(hereinafter called the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (hereinafter called the "indemnifying
party") in writing and the indemnifying party, upon request of the indemnified
party, shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of the
Underwriters, such firm shall be designated in writing by the Manager. In the
case of any such separate firm for the Issuer Trust, the Issuer Trustees, the
Administrators, the Company, the Company's directors, the Company's officers
who sign the Registration Statement and controlling persons of the Issuer Trust
and Company, such firm shall be designated in writing by the Issuer Trust and
the Company. The indemnifying party shall not be liable for any settlement of
any proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify, to the extent provided in the two immediately
preceding paragraphs, the indemnified party from and against any loss
15
or liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the second or third paragraph
of this Section 6 is unavailable to an indemnified party in respect of any
losses, claims, damages or liabilities for which indemnification is provided
herein, then the indemnifying party, in lieu of indemnifying such indemnified
party, shall contribute to the amount paid or payable by such indemnified party
as a result of such losses, claims, damages or liabilities (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company and the Issuer Trust on the one hand and the Underwriters on the other
hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company and the
Issuer Trust on the one hand and of the Underwriters on the other hand in
connection with the statements or omissions which resulted in such losses,
claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Issuer
Trust on the one hand and by the Underwriters on the other hand shall be deemed
to be in the same respective proportions as the net proceeds from the offering
(before deducting expenses) received by the Company and the Issuer Trust bear
to the total underwriting discounts and commissions received by the
Underwriters in respect thereof. The relative fault of the Company and the
Issuer Trust on the one hand and of the Underwriters on the other hand shall be
determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to
state a material fact relates to information supplied by the Company and the
Issuer Trust or by the Underwriters and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Company, the Issuer Trust and the Underwriters agree that it would
not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation (even if the Underwriters were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in the immediately
preceding paragraph. The amount paid or payable by an indemnified party as a
result of the losses, claims, damages and liabilities referred to in the
immediately preceding paragraph shall be deemed to include, subject to the
limitations set forth above, 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 Section 6, the
Underwriters shall not be required to contribute any amount in excess of the
amount by which the total price at which the
16
Offered Securities underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which the Underwriters
have otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Securities Act)
shall be entitled to contribution from any person who was not guilty of such
fraudulent misrepresentation.
The indemnity and contribution agreement contained in this Section 6
and the representations and warranties of the Company and the Issuer Trust
contained in this Agreement shall remain operative and in full force and effect
regardless of (i) any termination of this Agreement, (ii) any investigation
made by or on behalf of the Underwriters or any person controlling the
Underwriters or by or on behalf of the Issuer Trust, the Issuer Trustees, the
Administrators, the Company, the Company's officers or directors or any person
controlling the Issuer Trust or Company and (iii) acceptance of and payment for
any of the Offered Securities.
7. Termination. This Agreement shall be subject to termination in
the absolute discretion of the Manager by notice given by the Manager to the
Company, if (a) after the execution and delivery of the Underwriting Agreement
and prior to the Closing Date [or the Option Closing Date, as the case may be,]
(i) trading generally shall have been suspended or materially limited on or by,
as the case may be, the New York Stock Exchange, the American Stock Exchange,
or the National Association of Securities Dealers, Inc., (ii) trading of any
securities of the Company shall have been suspended on the Nasdaq National
Market or, in the case of an offering of Preferred Securities, the trading of
any securities of the Issuer Trust shall have been suspended on any exchange or
in the over-the-counter market, (iii) a general moratorium on commercial
banking activities in New York shall have been declared by either Federal or
New York State authorities, or (iv) there shall have occurred any outbreak or
escalation of hostilities or any change in financial markets or any calamity or
crisis that, in the judgment of the Manager, is material and adverse and (b) in
the case of any of the events specified in clauses (a)(i) through (iv), such
event, singly or together with any other such event, makes it, in the judgment
of the Manager, impracticable to market the Offered Securities on the terms and
in the manner contemplated in the Prospectus.
The Company and the Issuer Trust will pay and bear all costs and
expenses incident to the performance of their obligations under this Agreement,
including (a) the preparation, printing and filing of the Registration
Statement (including financial statements and exhibits), as originally filed
and as amended, the preliminary prospectuses and the Prospectus and any
amendments or supplements thereto, and the cost of furnishing copies thereto to
the Underwriters, (b) the preparation, issuance and delivery of the Offered
Securities, (c) the reasonable fees and disbursements of the Company's counsel
and accountants, of the Issuer Trust's counsel and of the Issuer Trustees and
their counsel, (d) the qualification of the Offered Securities [and, in the
case of an offering of
17
Preferred Securities, the Preferred Securities and the Guarantees] under the
applicable state securities or Blue Sky laws in accordance with Section 5,
including filing fees and reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with any Blue Sky survey
and any legal investment survey, (e) all fees payable to the National
Association of Securities Dealers, Inc. in connection with the review, if any,
of the offering of the Securities and (f) any fees charged by rating agencies
for the rating of the Offered Securities. Except as specifically provided
elsewhere herein, the Underwriters will pay all of their own costs and
expenses, including without limitation the fees and expenses of their counsel
and the expenses of selling presentations.
If this Agreement shall be terminated by the Underwriters because of
any failure or refusal on the part of the Company or the Issuer Trust to comply
with the terms or to fulfill any of the conditions of this Agreement, or if for
any reason the Company or the Issuer Trust shall be unable to perform its
obligations under this Agreement, the Company and the Issuer Trust will
reimburse the Underwriters for all out-of-pocket expenses (including the fees
and disbursements of their counsel) reasonably incurred by the Underwriters in
connection with this Agreement or the offering contemplated hereunder. This
provision shall survive the termination or cancellation of this Agreement.
8. Defaulting Underwriters. If on the Closing Date [or the Option
Closing Date, as the case may be,] any one or more of the Underwriters shall
fail or refuse to purchase Offered Securities that it has or they have agreed
to purchase on such date, and the aggregate amount of Offered Securities which
such defaulting Underwriter or Underwriters agreed but failed or refused to
purchase is not more than one-tenth of the aggregate amount of the Offered
Securities to be purchased on such date, the other Underwriters shall be
obligated severally in the proportions that the amount of Preferred Securities
set forth opposite their respective names bears to the aggregate amount of
Preferred Securities set forth opposite the names of all such non-defaulting
Underwriters, or in such other proportions as the Manager may specify, to
purchase the Offered Preferred Securities which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Preferred Securities that any
Underwriter has agreed to purchase pursuant to this Agreement be increased
pursuant to this Section 8 by an amount in excess of one-ninth of such amount
of Offered Preferred Securities without the written consent of such
Underwriter. If on the Closing Date [or the Option Closing Date, as the case
may be,] any Underwriter or Underwriters shall fail or refuse to purchase
Preferred Securities and the aggregate amount of Preferred Securities with
respect to which such default occurs is more than one-tenth of the aggregate
amount of Preferred Securities to be purchased on such date, and arrangements
satisfactory to the Manager and the Company for the purchase of such Preferred
Securities are not made within 36 hours after such default, this Agreement
shall terminate without liability on the part of any non-defaulting
18
Underwriter, the Company or the Trust Issuer. In any such case either the
Manager or the Company shall have the right to postpone the Closing Date [or
the Option Closing Date, as the case may be,] but in no event for longer than
seven days, in order that the required changes, if any, in the Registration
Statement and in the Prospectus or in any other documents or arrangements may
be effected. Any action taken under this paragraph shall not relieve any
defaulting Underwriter from liability in respect of any default of such
Underwriter under this Agreement.
9. Counterparts. The Underwriting Agreement may be signed in any
number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
10. Applicable Law. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have
been inserted for convenience of reference only and shall not be deemed a part
of this Agreement.
19
