Exhibit 1.2
TIME WARNER TELECOM INC.
FORM OF
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(EQUITY SECURITIES)
January 12, 2001
From time to time, Time Warner Telecom Inc., a Delaware corporation
(the "Company"), may 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 sometimes referred to as this
Agreement. Terms defined in the Underwriting Agreement are used herein as
therein defined.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement, including a prospectus, relating to
the Equity 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")
specifically relating to the Equity Securities pursuant to Rule 424 under
the Securities Act of 1933, as amended (the "Securities Act"). The term
"Registration Statement" means the registration statement, including the
exhibits thereto, as amended to the date of this Agreement. 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 Equity
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 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. The Company represents and warrants to
and agrees with each of the Underwriters that:
The Registration Statement has become effective; no stop order
suspending the effectiveness of the Registration Statement is in
effect, and no proceedings for such purpose are pending before or, to
the knowledge of the Company, threatened by the Commission.
(b)(i) Each document, if any, 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 applicable rules and regulations of the
Commission thereunder, (ii) each part of the Registration Statement,
when such part became effective, did not contain, and each such part,
as amended or supplemented, if applicable, will not contain any untrue
statement of a material fact or omit to state a material fact required
to be stated therein or necessary to make the statements therein not
misleading, (iii) the Registration Statement and the Prospectus
comply, and, as amended or supplemented, if applicable, will comply in
all material respects with the Securities Act and the applicable rules
and regulations of the Commission thereunder and (iv) the Prospectus
does not contain and, as amended or supplemented, if applicable, will
not contain any untrue statement of a material fact or omit to state a
material fact necessary to make the statements therein, in the light
of the circumstances under which they were made, not misleading,
except that the representations and warranties set forth in this
paragraph do not apply to statements or omissions in the Registration
Statement or the Prospectus based upon information relating to any
Underwriter furnished to the Company in writing by such Underwriter
through the Manager expressly for use therein.
(c) The Company has been duly incorporated, is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has the corporate power and authority to own its
property and to conduct its business as described in the Prospectus
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
to the extent that the failure to be so qualified or be in good
standing would not have a material adverse effect on the Company and
its subsidiaries, taken as a whole.
(d) Each subsidiary of the Company has been duly incorporated or, in
the case of partnerships or limited liability companies, duly
organized, is validly existing as a corporation, a partnership or a
limited liability company, as the case may be, in good standing under
the laws of the jurisdiction of its incorporation or organization, has
the power and authority to own its property and to conduct its
business as described in the Prospectus 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 to the extent that the
failure to be so qualified or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole; all of the issued shares of capital stock of each subsidiary
of the Company that is a corporation have been duly and validly
authorized and issued, are fully paid and non-assessable and are owned
directly or indirectly by the Company, free and clear of all liens,
encumbrances, equities or claims, and all of the partnership interests
and membership interests in each subsidiary of the Company that is a
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partnership or a limited liability company, as the case may be, are
owned directly or indirectly by the Company, free and clear of all
liens, encumbrances, equities or claims.
(e) This Agreement has been duly authorized, executed and
delivered by the Company.
(f) The Company has an authorized capitalization as set forth in
the Prospectus, and all of the issued shares of capital stock of the
Company have been duly and validly authorized and issued, are fully
paid and non-assessable and conform to the description thereof
contained in the Prospectus under the caption "Description of Capital
Stock."
(g) The Equity Securities have been duly authorized and, when
issued and delivered in accordance with the terms of this Agreement,
will be validly issued, fully paid and non-assessable, and the
issuance of such Equity Securities will not be subject to any
preemptive or similar rights.
(h) The execution and delivery by the Company of, and the
performance by the Company of its obligations under, this Agreement
will not contravene any provision of applicable law or the certificate
of incorporation or by-laws of the Company or any agreement or other
instrument binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole, or any
judgment, order or decree of any governmental body, agency or court
having jurisdiction over the Company or any subsidiary, and no
consent, approval, authorization or order of, or qualification with,
any governmental body or agency is required for the performance by the
Company of its obligations under this Agreement, except (i) such as
may have been obtained and (ii) such as may be required by the
securities or Blue Sky laws of the various states and other
jurisdictions in connection with the offer and sale of the Equity
Securities.
(i) There has not occurred any material adverse change, or any
development involving a prospective material adverse change, in the
condition, financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole, from
that set forth in the Prospectus (exclusive of any amendments or
supplements thereto subsequent to the date of the Underwriting
Agreement).
(j) There are no legal or governmental proceedings pending or, to
the knowledge of the Company, threatened to which the Company or any
of its subsidiaries is a party or to which any of the properties of
the Company or any of its subsidiaries is subject that are required to
be described in the Registration Statement or the Prospectus and are
not so described or any statutes, regulations, contracts or other
documents that are required to be described in the Registration
Statement or the Prospectus or to be filed or incorporated by
reference as exhibits to the Registration Statement that are not
described, filed or incorporated as required.
(k) Each preliminary prospectus filed as part of the Registration
Statement as originally filed or as part of any amendment thereto, or
filed pursuant to Rule 424 under the Securities Act, complied when so
filed in all material respects with the Securities Act and the
applicable rules and regulations of the Commission thereunder.
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(l) The Company is not and, after giving effect to the offering
and sale of the Equity Securities and the application of the proceeds
thereof as described in the Prospectus, will not be required to
register as an "investment company" as such term is defined in the
Investment Company Act of 1940, as amended.
(m) The Company and its 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, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(n) There are no costs or liabilities associated with
Environmental Laws (including, without limitation, any capital or
operating expenditures required for clean-up, closure of properties or
compliance with Environmental Laws or any permit, license or approval,
any related constraints on operating activities and any potential
liabilities to third parties) which would, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole.
(o) Except as set forth in the Prospectus, there are no
contracts, agreements or understandings between the Company and any
person granting such person the right to require the Company to file a
registration statement under the Securities Act with respect to any
securities of the Company or to require the Company to include such
securities with the Equity Securities registered pursuant to the
Registration Statement.
(p) Subsequent to the respective dates as of which information is
given in the Prospectus, (i) the Company and its subsidiaries have not
incurred any material liability or obligation, direct or contingent,
nor entered into any material transaction not in the ordinary course
of business; (ii) the Company and its subsidiaries have not purchased
any of its outstanding capital stock, nor has the Company declared,
paid or otherwise made any dividend or distribution of any kind on its
capital stock other than ordinary and customary dividends; and (iii)
there has not been any material change in the capital stock,
short-term debt or long-term debt of the Company and its subsidiaries,
taken as a whole, except in each case as set forth or described in the
Prospectus.
(q) The Company and its subsidiaries have good and marketable
title in fee simple to all real property and good marketable title to
all personal property owned by them, in each case free and clear of
all liens, encumbrances and defects except such as are described in
the Prospectus or 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 or such as
do not, singly or in the aggregate, have or could not result in a
material adverse effect on the Company and its subsidiaries, taken as
a
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whole; 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 do not interfere with
the use made and proposed to be made of such property and buildings by
the Company and its subsidiaries or such as do not, singly or in the
aggregate, have or could not result in a material adverse effect on
the Company and its subsidiaries, taken as a whole, in each case
except as described in the Prospectus.
(r) Except as set forth in the Prospectus, the Company and its
subsidiaries own or possess, or can acquire on reasonable terms, all
patents, patent rights, licenses, inventions, copyrights, know-how
(including trade secrets and other unpatented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks and trade names, currently employed by them
in connection with the business now operated by them, except where the
failure to own or possess or to have the right to acquire any of the
foregoing, singly or in the aggregate, does not have a material
adverse effect on the Company and its subsidiaries, taken as a whole,
and neither the Company nor any of its subsidiaries has received any
notice of infringement of or conflict with asserted rights of others
with respect to any of the foregoing which, singly or in the
aggregate, if the subject of an unfavorable decision, ruling or
finding, would have a material adverse effect on the Company and its
subsidiaries, taken as a whole.
(s) No labor dispute with the employees of the Company or any of
its subsidiaries exists, except as described in the Prospectus, or, to
the knowledge of the Company, is imminent, except for disputes that do
not or would not have a material adverse effect on the Company and its
subsidiaries taken as a whole; and the Company is not aware of any
existing, threatened or imminent labor disturbance by the employees of
any of its principal suppliers or contractors that could have a
material adverse effect on the Company and its subsidiaries, taken as
a whole.
(t) The Company and its subsidiaries are insured by insurers of
recognized financial responsibility against such losses and risks and
in such amounts as are prudent and customary in the businesses in
which they are engaged; and neither of the Company nor any of its
subsidiaries has any reason to believe that it will not be able to
renew its existing insurance coverage as and when such coverage
expires or to obtain similar coverage from similar insurers as may be
necessary to continue its business at a cost that would not have a
material adverse effect on the Company and its subsidiaries, taken as
a whole, except as described in the Prospectus.
(u) The Company and its subsidiaries possess all permits,
licenses, rights of way, approvals, consents and other authorizations
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies (including the Federal Communications Commission
(the "FCC"), the public utilities commission, or any equivalent body,
of each state in which the Company does business and any other
relevant state or local governmental department, commission, board,
bureau, agency, court or other authority thereof (the "Local
Authorities")) required for the conduct of the telecommunications
business now operated by the Company (collectively, the "Governmental
Licenses"), except where the failure to possess any such Governmental
Licenses would not, singly or in the aggregate, have a material
adverse effect on the Company and its subsidiaries, taken as a whole;
the Company and its subsidiaries are in compliance with the terms and
conditions of all such Licenses, except where the failure so to comply
would not, singly or in the aggregate, have a material adverse effect
on the Company and its subsidiaries,
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taken as a whole; all of the Governmental Licenses are valid and in
full force and effect, except where the invalidity of such
Governmental Licenses or the failure of such Governmental Licenses to
be in full force and effect would not, singly or in the aggregate,
have a material adverse effect on the Company and its subsidiaries,
taken as a whole; there is no outstanding adverse judgment, decree or
order that has been issued by the FCC or any of the Local Authorities
against the Company or any of its subsidiaries and which, singly or in
the aggregate, would have a material adverse effect on the Company and
its subsidiaries, taken as a whole; and neither the Company nor any of
its subsidiaries has received any notice of or is aware of proceedings
relating to the revocation or modification of any such Governmental
Licenses or, except as set forth in the Prospectus, that would
otherwise affect the operations of the Company or its subsidiaries and
which, singly or in the aggregate, would have a material adverse
effect on the Company and its subsidiaries, taken as a whole.
(v) The Company and each of its subsidiaries maintain a system of
internal accounting controls sufficient to provide reasonable
assurance that (i) transactions are executed in accordance with
management's general or specific authorizations; (ii) transactions are
recorded as necessary to permit preparation of financial statements in
conformity with generally accepted accounting principles and to
maintain asset accountability; (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.
2. Terms of Public Offering. The Company is advised by the Manager that
the Underwriters propose to make a public offering of their respective
portions of the Equity 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 Equity Securities are set forth in the Prospectus.
3. Payment and Delivery. Except as otherwise provided in this Section 3,
payment for the Equity Securities shall be made to the Company in Federal
or other funds immediately available 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 Equity Securities. The time and
date of such payment are hereinafter referred to as the "Closing Date".
Certificates for the Equity Securities shall be in definitive form and
registered in such names and in such denominations the Manager shall
request in writing not later than two full business days prior to the date
of delivery, with any transfer taxes payable in connection with the
transfer of the Equity Securities to the Underwriters duly paid, against
payment of the Purchase Price therefor.
4. Conditions to the Underwriters' Obligations. The several obligations
of the Underwriters are subject to the following conditions:
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(a) Subsequent to the execution and delivery of the Underwriting
Agreement and prior to the Closing Date:
(i) there shall not have occurred any downgrading, nor shall
any notice have been given of any intended or potential
downgrading or of any review for a possible change that does not
indicate the direction of the possible change, in the rating
accorded any of the Company's securities by any "nationally
recognized statistical rating organization," as such term is
defined for purposes of Rule 436(g)(2) under the Securities Act;
and
(ii) there shall not have occurred any change, or any
development involving a prospective change, in the condition,
financial or otherwise, or in the earnings, business or
operations of the Company and its subsidiaries, taken as a whole,
from that set forth in the Prospectus (exclusive of any
amendments or supplements thereto subsequent to the date of this
Agreement) that, in the judgment of the Manager, is material and
adverse and that makes it, in the judgment of the Manager,
impracticable to market the Equity Securities on the terms and in
the manner contemplated in the Prospectus.
(b) The Underwriters shall have received on the Closing Date a
certificate, dated the Closing Date and signed by an executive officer
of the Company, to the effect set forth in Section 4(a)(i) above and
to the effect that the representations and warranties of the Company
contained in this Agreement are true and correct as of the Closing
Date and that the Company has complied with all of the agreements and
satisfied all of the conditions on its part to be performed or
satisfied hereunder on or before the Closing Date.
The officer signing and delivering such certificate may rely upon
the best of his or her knowledge as to proceedings threatened.
(c) The Underwriters shall have received on the Closing Date an
opinion of Cravath, Swaine & Xxxxx, outside counsel for the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, and, based solely on
a certificate of good standing from the Secretary of State of
Delaware, is a corporation validly existing and in good standing
under the laws of the State of Delaware, with full corporate
power and authority to own, lease and operate its properties and
conduct its businesses as described in the Prospectus;
(ii) to such counsel's knowledge, (A) there are not any pending
or threatened governmental proceedings before any court or
governmental agency or authority or any arbitrator to which the
Company or any of its subsidiaries is a party or to which any of
the properties of the Company or any of its subsidiaries is
subject of a character required to be disclosed in the
Registration Statement or the Prospectus which is not adequately
disclosed as required, and (B) there is no contract, indenture,
mortgage, loan agreement, note, lease or other document of a
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character required to be described in the Registration Statement
or the Prospectus or to be filed or incorporated by reference as
exhibits to the Registration Statement which is not described,
filed or incorporated as required;
(iii) this Agreement has been duly authorized, executed and
delivered by the Company;
(iv) the Company's authorized capital stock is as set forth
in the Prospectus under the caption "Description of Capital
Stock." The Equity Securities conform to the description thereof
contained in the Prospectus;
(v) the Equity Securities have been duly authorized and,
when issued and delivered in accordance with the terms of this
Agreement, will be validly issued, fully paid and non-assessable,
and the issuance of such Equity Securities will not be subject to
any statutory, or to such counsel's knowledge, contractual
preemptive or similar rights;
(vi) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement will not contravene any provision of applicable law or
the certificate of incorporation or by-laws of the Company or, to
the best of such counsel's knowledge, any judgment, order or
decree of any governmental body, agency or court having
jurisdiction over the Company or any subsidiary, and no consent,
approval, authorization or order of, or qualification with, any
governmental body or agency is required for the performance by
the Company of its obligations under this Agreement, except such
as has been obtained under the Securities Act and such as may be
required by the securities or Blue Sky laws of the various states
in connection with the offer and sale of the Equity Securities;
(vii) the statements in the Prospectus under the captions
"Recent Developments," "Description of Debt Securities,"
"Description of Capital Stock," "Certain Relationships and
Related Transactions - Stockholders Agreement," "Description of
Certain Indebtedness," "Certain United States Federal Tax
Consequences to Holders of the Notes," and any other captions in
the Prospectus listed on a schedule attached to an Underwriting
Agreement, in each case insofar as such statements constitute
summaries of the legal matters, documents or proceedings referred
to therein, fairly present the information required to be
described with respect to such legal matters, documents and
proceedings and summarize in all material respects the matters
referred to therein;
(viii) the Company is not and, after giving effect to the
offering and sale of the Equity Securities and the application of
the proceeds thereof as described in the Prospectus, will not be
required to register as an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended;
(ix) to such counsel's knowledge, there are no statutes or
regulations (other than federal, state or local
telecommunications statutes or regulations as to
8
which such counsel expresses no opinion) that are required to be
disclosed in the Registration Statement that are not adequately
disclosed as required.
(x) such counsel's work in connection with this matter did
not disclose any information that gave such counsel reason to
believe that (i) each part of the Registration Statement when
such part became effective, or the Prospectus as of its date and
the date hereof (in each case except for the financial statements
and other information of a statistical, accounting or financial
nature included therein, as to which such counsel does not
express any view) was not appropriately responsive in all
material respects to the requirements of the Securities Act and
the applicable rules and regulations of the Commission
thereunder, or (ii) each part of the Registration Statement when
such part became effective, 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 that the Prospectus, as of its date and as of the
date hereof, included or includes an untrue statement of a
material fact or omits 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 (in each
case except for the financial statements and other information of
a statistical, accounting or financial nature included therein as
to which such counsel does not express any view).
(d) The Underwriters shall have received on the Closing Date an
opinion of Xxxx X. Xxxxx, Esq., General Counsel to the Company, dated
the Closing Date, to the effect that:
(i) the Company has been duly incorporated and is validly
existing and in good standing under the laws of the State of
Delaware, with full corporate power and authority to own its
property and to conduct its business as described in the
Prospectus;
(ii) the Company 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 to the extent that the failure to be
so qualified or be in good standing would not have a material
adverse effect on the Company and its subsidiaries, taken as a
whole;
(iii) each subsidiary of the Company has been duly
incorporated or, in the case of partnerships or limited liability
companies, duly organized, is validly existing as a corporation,
a partnership or a limited liability company, as the case may be,
in good standing under the laws of the jurisdiction of its
incorporation or organization, as the case may be, has the power
and authority to own its property and to conduct its business as
described in the Prospectus 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 to the extent that
the failure to be so qualified or be in good standing would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
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(iv) except as otherwise disclosed in the Prospectus, all of
the issued shares of capital stock of each subsidiary of the
Company that is a corporation have been duly and validly
authorized and issued, are fully paid and non-assessable and are
owned directly by the Company free and clear of all liens,
encumbrances, equities or claims; and all of the partnership
interests and membership interests in each subsidiary of the
Company that is a partnership or limited liability company, as
the case may be, are owned directly by the Company free and clear
of all liens, encumbrances, equities or claims;
(v) the statements contained in the Prospectus under the
captions "Risk Factors--Competition in local services has also
increased as a result of changing government regulations," "Risk
Factors--We are subject to significant federal and state
regulation that can significantly affect pricing and
profitability," "Risk Factors--We may receive less revenue if
incumbent local exchange carriers successfully challenge
reciprocal compensation," "Risk Factors--We are dependent on
governmental and other authorizations," "Risk Factors--We are
dependent on Time Warner Cable's permits, licenses and
rights-of-way," "Business--Competition", "Business--Government
Regulation," and any other caption in the Prospectus listed on a
schedule attached to any Underwriting Agreement, insofar as such
statements constitute a summary of the legal or regulatory
matters or legal or regulatory proceedings referred to therein,
are correct in all material respects and do not omit a material
fact necessary to make the statements contained therein not
misleading;
(vi) to such counsel's knowledge, the Company possesses the
Governmental Licenses and the Company is in compliance with the
terms and conditions of all such Governmental Licenses, except
where the failure to so comply would not, singly or in the
aggregate, have a material adverse effect on the Company and its
subsidiaries, taken as a whole, and all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not
have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(vii) there is no outstanding adverse judgment, decree or
order that has been issued by the FCC or any of the Local
Authorities against the Company and its subsidiaries which,
singly or in the aggregate, would have a material adverse effect
on the Company and its subsidiaries, taken as a whole, and, to
the best of such counsel's knowledge, neither the Company nor any
of its subsidiaries is the object of, or threatened by, any
proceedings relating to the revocation or modification of any
such Governmental Licenses or, except as set forth in the
Prospectus, that would otherwise affect the operation of the
Company, which, singly or in the aggregate, would have a material
adverse effect on the Company and its subsidiaries, taken as a
whole;
(viii) the execution, delivery and performance of this
Agreement and the consummation of the transactions contemplated
in this Agreement and
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compliance by the Company with its obligations under this
Agreement do not and will not, whether with or without the giving
of notice or lapse of time or both, result in any violation of
any applicable law, statute, rule, regulation, judgment, order,
writ or decree, known to such counsel, of any Local Authority
having jurisdiction over the Company or any of its subsidiaries
or any of its assets or operations with respect to the provision
of telecommunications services except for such violations that
would not have a material adverse effect on the Company and its
subsidiaries, taken as a whole;
(ix) that each document, if any, filed pursuant to the
Exchange Act and incorporated by reference in the Prospectus
(except for financial statements and schedules, and other
information of a statistical, accounting or financial nature
included therein as to which such counsel need not express any
opinion) complied when so filed as to form in all material
respects with the Exchange Act and the applicable rules and
regulations of the Commission thereunder;
(x) the execution and delivery by the Company of, and the
performance by the Company of its obligations under, this
Agreement will not contravene any agreement or other instrument
binding upon the Company or any of its subsidiaries that is
material to the Company and its subsidiaries, taken as a whole;
(xi) the statements in the Registration Statement under (A)
Item 15, (B) "Item 3 - Legal Proceedings" of the Company's most
recent annual report on Form 10-K incorporated by reference in
the Prospectus and (C) in "Item 1 - Legal Proceedings" of Part II
of the Company's quarterly reports on Form 10-Q, if any, filed
since such annual report, in each case insofar as such statements
constitute summaries of the legal matters, documents or
proceedings referred to therein, fairly present the information
required to be described with respect to such legal matters,
documents and proceedings and summarize in all material respects
the matters referred to therein; and
(xii) to such counsel's knowledge, there are no
telecommunications statutes or regulations that are required to
be described in the Prospectus that are not described as
required;
In rendering opinion (vi) above, the General Counsel may
rely, as to matters involving the application of the laws of
Arizona, California, Colorado, Florida, Georgia, Hawaii, Idaho,
Illinois, Indiana, Kentucky, Minnesota, Nevada, New Mexico, New
York, New Jersey, North Carolina, Ohio, Oregon, South Carolina,
Tennessee, Texas, Utah, Washington and Wisconsin, upon the
opinions of special counsel to the Company (which opinions shall
be dated and furnished to the Underwriters on the Closing Date
and shall be satisfactory in form and substance to counsel for
the Underwriters, provided that the General Counsel shall state
that such opinion (vi) above is subject to the qualifications set
forth in such opinions of special counsel and provided further
that the General Counsel shall
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state in his opinion that he believes that he is justified in
relying upon such opinions).
(e) The Underwriters shall have received on the Closing Date an
opinion of Xxxxxx Xxxx & Xxxxxxxxx, regulatory counsel for the
Company, dated the Closing Date, to the effect that:
(i) The statements contained in the Prospectus under the
captions "Business--Government Regulation--Federal Regulation"
and "Business--Government Regulation--Telecommunications Act of
1996," insofar as such statements constitute a summary of the
legal or regulatory matters or legal or regulatory proceedings
referred to therein, are correct in all material respects and do
not omit a material fact necessary to make the statements
contained therein not misleading.
(f) The Underwriters shall have received on the Closing Date an
opinion of Shearman & Sterling, counsel for the Underwriters, dated
the Closing Date, covering the matters referred to in Sections
4(c)(iii), 4(c)(vii) (but only as to the statements in the Prospectus
under "Description of Capital Stock," and "Underwriting") and 4(c)(x)
above.
With respect to Section 4(c)(x) above, Cravath, Swaine & Xxxxx
and Shearman & Sterling may provide their statements in separate
letters and may state that their opinion and belief are based upon
their participation in the preparation of the Registration Statement
and discussion of the contents thereof, but are without independent
check or verification, except as specified.
The opinion of Cravath, Swaine & Xxxxx described in Section 4(c)
above shall be rendered to the Underwriters at the request of the
Company and shall so state therein.
(g) The Underwriters shall have received on each of the date
hereof and the Closing Date (i) a letter, dated the date hereof or the
Closing Date, as the case may be, in form and substance satisfactory
to the Underwriters, from the Company's independent public
accountants, containing statements and information of the type
ordinarily included in accountants' "comfort letters" to underwriters
with respect to the financial statements in the Prospectus or the
Registration Statement, and certain financial information contained in
or incorporated by reference into the Prospectus or the Registration
Statement and (ii) to the extent that the audited financial statements
of another person is required under the rules and regulations of the
Securities Act to be contained in the Prospectus or Registration
Statement, a similar "cold comfort" letter, dated the date hereof or
the Closing Date, as the case may be, in form and substance
satisfactory to the Underwriters, from such other person's independent
public accountants.
(h) The "lockup" agreements, each substantially in the form of
Exhibit A hereto, between the Manager and certain shareholders,
officers and directors of the Company relating to sales and certain
other dispositions of shares of the Equity Securities or certain other
securities, delivered to you on or before the date hereof, shall be in
full force and effect on the Closing Date.
12
(i) The Equity Securities of the Company shall continue to be
listed or be approved for trading on the Nasdaq National Market.
The several obligations of the Underwriters to purchase Equity
Optional Securities hereunder are subject to the delivery to the
Underwriters on the Option Closing Date of such documents as they may
reasonably request with respect to the good standing of the Company,
the due authorization and issuance of the Equity Optional Securities
and other matters related to the issuance of the Equity Optional
Securities.
5. Covenants of the Company. In further consideration of the agreements
of the Underwriters herein contained, the Company covenants with each
Underwriter as follows:
(a) To furnish the Manager, without charge, three signed copies
of the Registration Statement (including exhibits thereto) and for
delivery to each other Underwriter a conformed copy of the
Registration Statement (without exhibits thereto) and to furnish the
Manager in New York City, without charge, prior to 10:00 a.m. New York
City time on the business day next succeeding the date of this
Agreement and during the period mentioned in Section 6(c) below, as
many copies of the Prospectus, any documents incorporated by reference
therein and any supplements and amendments thereto or to the
Registration Statement as the Manager may reasonably request.
(b) Before amending or supplementing the Registration Statement
or the Prospectus with respect to the Equity Securities, to furnish to
the Manager a copy of each such proposed amendment or supplement and
not to file any such proposed amendment or supplement to which the
Manager reasonably objects.
(c) If, during such period after the first date of the public
offering of the Equity Securities as in the opinion of counsel for the
Underwriters the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall
occur or condition exist 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 when the Prospectus is delivered to
a purchaser, not misleading, or if, in the opinion of counsel for the
Underwriters, it is necessary to amend or supplement the Prospectus to
comply with applicable law, forthwith to prepare, file with the
Commission and furnish, at its own expense, to the Underwriters and to
the dealers (whose names and addresses the Manager will furnish to the
Company) to which Equity Securities may have been sold by the Manager
on behalf of the Underwriters and to any other dealers upon 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 when the Prospectus is delivered to
a purchaser, be misleading or so that the Prospectus, as amended or
supplemented, will comply with law.
(d) To endeavor to qualify the Equity Securities for offer and
sale under the securities or Blue Sky laws of such jurisdictions as
the Manager shall reasonably request; provided that, in connection
therewith, the Company shall not be required to qualify as a foreign
corporation or to file a general consent to service of process in any
jurisdiction.
13
(e) To make generally available to the Company's security holders
and to the Manager as soon as practicable an earning statement of the
Company and its subsidiaries covering a twelve month period beginning
on the first day of the first full fiscal quarter after the date of
this Agreement, which earning statement shall satisfy the provisions
of Section 11 (a) of the Securities Act and the rules and regulations
of the Commission thereunder (including at the option of the Company
Rule 158). If such fiscal quarter is the last fiscal quarter of the
Company's fiscal year, such earning statement shall be made available
not later than 90 days after the close of the period covered thereby
and in all other cases shall be made available not later than 45 days
after the close of the period covered thereby.
(f) That without the prior written consent of the Manager on
behalf of the Underwriters, it will not, during the period ending 180
days after the date of the Prospectus, (1) publicly offer, pledge,
sell, contract to sell, grant any option or contract to purchase,
lend, or otherwise transfer, dispose of or distribute, directly or
indirectly, any of the class A common stock, par value $.01 per share,
of the Company (the "Class A Common Stock") or (2) enter into any
public swap or other arrangement that transfers to another, in whole
or in part, any of the economic consequences of ownership of the Class
A Common Stock, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of the Class A Common Stock
or such other securities, in cash or otherwise. The foregoing sentence
shall not apply to (A) the Equity Securities to be sold hereunder, (B)
the issuance by the Company of (i) shares of Class A Common Stock upon
the exercise of an option or warrant or the conversion of a security
outstanding on the date hereof of which the Underwriters have been
advised in writing and (ii) grants from time to time of stock options
and other incentive compensation pursuant to the 1998 Option Plan,
provided that such options or awards do not vest during the period of
180 days ending after the date of the Prospectus, (C) the issuance by
the Company of shares of the Class A Common Stock pursuant to the 2000
Stock Purchase Plan, (D) private transactions relating to shares of
the Class A Common Stock, provided that any transferee that receives
shares of the Class A Common Stock in a private transaction shall be
subject to the remainder of the 180-day lock-up set forth in clauses
(1) and (2) above to the same extent as the Company, or (E) the
issuance by the Company of shares of the Class A Common Stock as
compensation to members of the Company's board of directors.
(g) Whether or not the transactions contemplated in this
Agreement are consummated or this Agreement is terminated, to pay or
cause to be paid all expenses incident to the performance of its
obligations under this Agreement, including: (i) the fees,
disbursements and expenses of the Company's counsel and the Company's
accountants in connection with the registration and delivery of the
Equity Securities under the Securities Act and all other fees or
expenses in connection with the preparation and filing of the
Registration Statement, any preliminary prospectus, the Prospectus and
amendments and supplements to any of the foregoing, including all
printing costs associated therewith, and the mailing and delivering of
copies thereof to the Underwriters and dealers, in the quantities
hereinabove specified, (ii) the cost of printing or producing any Blue
Sky or legal investment memorandum in connection with the offer and
sale of the Equity Securities under state law and all expenses in
connection with the qualification
14
of the Equity Securities for offer and sale under state law as
provided in Section 5(d) hereof, including filing fees and the
reasonable fees and disbursements of counsel for the Underwriters in
connection with such qualification and in connection with the Blue Sky
or legal investment memorandum, (iii) all filing fees and the
reasonable fees and disbursements of counsel to the Underwriters
incurred in connection with the review and qualification of the
offering of the Equity Securities by the National Association of
Securities Dealers, Inc. (the "NASD"), (iv) the cost of printing
certificates representing the Equity Securities, (v) the cost and
charges of any transfer agent, registrar or depositary, (vi) all
expenses in connection with any transfer and sale of the Equity
Securities outside the United States, including the filing fees, (vii)
any fees charged by the rating agencies for the rating of the Equity
Securities, (viii) all fees and expenses in connection with the
preparation and filing of the registration statement on Form 8-A
relating to the Securities and all costs and expenses incident to
listing the Equity Securities on the Nasdaq National Market and other
national securities exchanges and foreign stock exchanges, (ix) the
costs and expenses of the Company relating to investor presentations
on any "road show" undertaken in connection with the marketing of the
offering of the Equity Securities, including, without limitation,
expenses associated with the production of road show slides and
graphics, fees and expenses of any consultants engaged in connection
with the road show presentations with the prior approval of the
Company, travel and lodging expenses of the representatives and
officers of the Company and any such consultants, and the cost of any
aircraft chartered in connection with the road show, and (x) all other
costs and expenses incident to the performance of the obligations of
the Company hereunder for which provision is not otherwise made in
this Section. It is understood, however, that except as provided in
this Section, Section 6 entitled "Indemnity and Contribution", and the
last paragraph of Section 8 below, the Underwriters will pay all of
their costs and expenses, including fees and disbursements of their
counsel, stock transfer taxes payable on resale of any of the Equity
Securities by them, and any advertising expenses connected with any
offers they may make.
6. Indemnity and Contribution. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
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 (including, without limitation, any legal
or other expenses reasonably incurred in connection with defending or
investigating any such action or claim) caused by any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement or any amendment thereof, any preliminary prospectus or the
Prospectus (as amended or supplemented if the Company shall have furnished
any amendments or supplements thereto), or caused by any omission or
alleged omission to state therein a material fact required to be stated
therein or 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 relating to any Underwriter furnished to the Company
in writing by such Underwriter through the Manager expressly for use
therein.
(b) Each Underwriter agrees, severally and not jointly, to
indemnify and hold harmless the Company, its directors, its officers
who sign the Registration Statement and each person, if any, who
controls the Company within the meaning of either Section 15 of the
15
Securities Act or Section 20 of the Exchange Act to the same extent as
the foregoing indemnity from the Company to such Underwriter, but only
with reference to information relating to such Underwriter furnished
to the Company in writing by such Underwriter through the Manager
expressly for use in the Registration Statement, any preliminary
prospectus and the Prospectus or any amendments or supplements
thereto.
(c) In case any proceeding (including any governmental
investigation) shall be instituted involving any person in respect of
which indemnity may be sought pursuant to Section 6(a) or 6(b), such
person (the "indemnified party") shall promptly notify the person
against whom such indemnity may be sought (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 respect of the legal expenses of
any indemnified party in connection with any proceeding or related
proceedings in the same jurisdiction, be liable for the 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. Such firm shall be
designated in writing by the Manager, in the case of parties
indemnified pursuant to Section 6(a) above, and by the Company, in the
case of parties indemnified pursuant to Section 6(b) above. 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 the indemnified party from and
against any loss or liability by reason of such settlement or
judgment. Notwithstanding the foregoing sentence, if at any time an
indemnified party shall have requested an indemnifying party to
reimburse the indemnified party for fees and expenses of counsel as
contemplated by the second and third sentences of this paragraph, the
indemnifying party agrees that it shall be liable for any settlement
of any proceeding effected without its written consent if (i) such
settlement is entered into more than 30 days after receipt by such
indemnifying party of the aforesaid request and (ii) such indemnifying
party shall not have reimbursed the indemnified party in accordance
with such request prior to the date of such settlement. 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.
(d) To the extent the indemnification provided for in Section
6(a) or 6(b) is unavailable to an indemnified party or insufficient in
respect of any losses, claims, damages or liabilities referred to
therein, then each indemnifying party under such paragraph, in lieu of
indemnifying such indemnified party thereunder, shall contribute to
the amount paid or payable
16
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 on the one hand and the
Underwriters on the other hand from the offering of the Equity
Securities or (ii) if the allocation provided by clause (6)(d)(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 (6)(d)(i) above but also the relative fault of the Company on
the one hand and of the Underwriters on the other hand in connection
with the statements or omissions that resulted in such losses, claims,
damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the
one hand and the Underwriters on the other hand in connection with the
offering of the Equity Securities shall be deemed to be in the same
respective proportions as the net proceeds from the offering of such
Equity Securities (before deducting expenses) received by the Company
and the total underwriting discounts and commissions received by the
Underwriters, in each case as set forth in the table on the cover of
the Prospectus Supplement, bear to the aggregate Public Offering Price
of the Equity Securities. The relative fault of the Company on the one
hand and 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,
or by the Underwriters and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such
statement or omission. The Underwriters' respective obligations to
contribute pursuant to this Section 6 are several in proportion to the
respective principal amounts of Equity Securities they have purchased
hereunder, and not joint.
(e) The Company and the Underwriters agree that it would not be
just or 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 that does not take account of the equitable considerations
referred to in Section 6(d). 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, no
Underwriter shall be required to contribute any amount in excess of
the amount by which the total price at which the Equity Securities
underwritten by it and distributed to the public were offered to the
public exceeds the amount of any damages that such Underwriter has
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 remedies
provided for in this Section 6 are not exclusive and shall not limit
any rights or remedies which may otherwise be available to any
indemnified party at law or in equity.
(f) The indemnity and contribution provisions contained in this
Section 8 and the representations, warranties and other statements of
the Company 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 any
Underwriter or any person controlling any Underwriter or by or on
behalf of the Company, its respective officers or
17
directors or any person controlling the Company and (iii) acceptance
of and payment for any of the Equity Securities.
7. Termination. This Agreement shall be subject to termination 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 (i)
trading generally shall have been suspended or materially limited on or by,
as the case may be, any of the New York Stock Exchange, the American Stock
Exchange, the National Association of Securities Dealers, Inc., the Chicago
Board of Options Exchange, the Chicago Mercantile Exchange or the Chicago
Board of Trade, (ii) trading of any securities of the Company shall have
been suspended on any exchange or in any 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 7(a)(i) through 7(a)(iv), such event, singly or
together with any other such event, makes it, in the judgment of the
Manager, impracticable to market the Equity Securities on the terms and in
the manner contemplated in the Prospectus.
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 Equity Securities that it has or they have
agreed to purchase hereunder on such date, and the aggregate amount of
Equity 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 Equity Securities to be purchased on such date, the
other Underwriters shall be obligated severally in the proportions that the
amount of Equity Securities set forth opposite their respective names in
the Underwriting Agreement bears to the aggregate amount of Equity
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 Equity 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 Equity 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 Equity 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 Equity Securities and the aggregate amount of Equity Securities
with respect to which such default occurs is more than one-tenth of the
aggregate amount of Equity Securities to be purchased on such date, and
arrangements satisfactory to the Manager and the Company for the purchase
of such Equity Securities are not made within 36 hours after such default,
this Agreement shall terminate without liability on the part of any
non-defaulting Underwriter or the Company. In any such case either the
Manager or the Company shall have the right to postpone the Closing Date,
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.
If this Agreement shall be terminated by the Underwriters, or any of
them, because of any failure or refusal on the part of the Company to
comply with the terms or to fulfill
18
any of the conditions of this Agreement, or if for any reason the
Company shall be unable to perform its obligations under this
Agreement, the Company will reimburse the Underwriters or such
Underwriters as have so terminated this Agreement with respect to
themselves, severally, for all out-of-pocket expenses (including the
fees and disbursements of their counsel) reasonably incurred by such
Underwriters in connection with this Agreement or the offering
contemplated hereunder.
9. Counterparts. This Agreement may be signed in two or more
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
EXHIBIT A
[FORM OF LOCK-UP LETTER]
Dear Sirs and Mesdames:
The undersigned understands that [Name of Manager] (the "Manager")
propose to enter into an Underwriting Agreement (the "Underwriting
Agreement") with Time Warner Telecom Inc., a Delaware corporation (the
"Company") providing for the public offering (the "Public Offering") by the
several underwriters, including [Name of the underwriters] (the
"Underwriters"), of _____ shares (plus _____ shares subject to the
Underwriters' over-allotment option) of [Insert Full Title of Securities]
(the "Equity Securities").
To induce the Underwriters that may participate in the Public Offering
to continue their efforts in connection with the Public Offering, the
undersigned hereby agrees that, without the prior written consent of the Manager
on behalf of the Underwriters, it will not, during the period ending 90 days
after the date of the supplement prospectus relating to the Public Offering (the
"Prospectus"), (1) publicly offer, pledge, sell, contract to sell, sell any
option or contract to purchase, purchase any option or contract to sell, grant
any option, right or warrant to purchase, lend, or otherwise transfer, dispose
of or distribute, directly or indirectly, any shares of class A common stock,
par value $.01 per share, of the Company (the "Class A Common Stock") or any
securities convertible into the Class A Common Stock (other than the Class B
Common Stock, par value $.01 per share, of the Company) or (2) enter into any
public swap or other arrangement that transfers to another, in whole or in part,
any of the economic consequences of ownership of the Class A Common Stock,
whether any such transaction described in clause (1) or (2) above is to be
settled by delivery of Class A Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) the sale of any Equity
Securities to the Underwriters pursuant to the Underwriting Agreement, (b)
transactions relating to shares of Class A Common Stock or other securities
acquired in open market transactions after the completion of the Public Offering
(c) the surrender of unexercised options or shares upon a "cashless exercise" of
options or other incentive compensation awards or (d) private transactions
relating to shares of Class A Common Stock, provided that the undersigned shall
ensure that any transferee that receives shares of the Class A Common Stock in a
private transaction shall be subject to the remainder of the 90-day lock-up
period set forth in clauses (1) and (2) above. In addition, the undersigned
agrees that, without the prior written consent of the Manager on behalf of the
Underwriters, it will not, during the period commencing on the date hereof and
ending 90 days after the date of the Prospectus, make any demand for or
exercise any right with respect to, the registration of any shares of Class A
Common Stock.
Whether or not the Public Offering actually occurs depends on a number
of factors, including market conditions. Any Public Offering will only be
made pursuant to an Underwriting Agreement, the terms of which are subject
to negotiation between the Company and the Underwriters.
Very truly yours,
------------------------
(Name)
------------------------
(Title)
2
UNDERWRITING AGREEMENT
_____________, 200__
Time Warner Telecom Inc.
00000 Xxxx Xxxxxxx Xxxxx
Xxxxxxxxx, XX 00000
Dear Sirs and Mesdames:
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 Time Warner Telecom, Inc., a Delaware corporation (the "Company"),
proposes to issue and sell _____of its [Full Title of Equity Securities]
(the "Initial Equity Securities"). [The Company also proposes to issue and
sell not more than _____ additional shares of its [Full Title of Equity
Securities] (the "Equity Optional Securities", and together with the
Initial Equity Securities, the "Equity Securities").
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell to the several
Underwriters, and each Underwriter agrees, severally and not jointly, to
purchase from the Company the respective principal amounts of Initial
Equity Securities set forth below opposite their names at a purchase price
of $___per share of Equity Security:
On the basis of the representations and warranties contained in this
Agreement, and subject to its terms and conditions, the Company also agrees
to sell the Underwriters the Equity Optional Securities, and the
Underwriters shall have a one-time right to purchase, severally and not
jointly, up to ____ of Equity Optional Securities. If the Underwriters
elect to exercise such option, the Underwriters shall so notify the Company
in writing not later than 30 days after the date of this Agreement, which
notice shall specify the number of Equity Optional Securities to be
purchased by the Underwriters and the date on which such shares are to be
purchased. Such date may be the same as the Closing Date (as defined below)
but not earlier than the Closing Date nor later than ten business days
after the date of such notice. Equity Optional Securities may be purchased
as provided solely for the purpose of covering overallotments made in
connection with the offering of the Equity Securities. If any Equity
Optional Securities are to be purchased, each Underwriter agrees, severally
and not jointly, to purchase the number of Equity Optional Securities
(subject to such adjustments to eliminate fractional shares as the Manager
may determine) that bears the same proportion to the total number of Equity
Optional Securities to be purchased as the number of Initial Equity
Securities set forth in Schedule I hereto opposite the name of such
Underwriter bears to the total number of Equity.
Number of Initial Equity
Name Securities
Names of Lead Managers and Underwriters
-----------------------
Total..........................
The Underwriters will pay for the Equity Securities upon delivery
thereof at Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx at
10:00 a.m. (New York City time) on _____________, or at such other time,
not later than 5:00 p.m. (New York City time) on _____________, as shall be
designated by the Manager. The time and date of such payment and delivery
are hereinafter referred to as the Closing Date.
The Underwriters will pay for the Equity Optional Securities upon
delivery thereof at Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx,
Xxx Xxxx at 10:00 a.m. (New York City time) on _______________ or at such
other time, not later than 5:00 p.m. (New York City time) on
_______________ but in no event not later than 30 days after the Closing
Date for the Equity Securities. The time and date of such payment and
delivery are hereinafter referred to as the Option Closing Date.
All provisions contained in the document entitled Time Warner Telecom
Inc. Form of Underwriting Agreement Standard Provisions (Equity Securities)
dated January 12, 2001, 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 (i) if any term defined in such document is otherwise
defined herein, the definition set forth herein shall control, (ii) all
references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be deemed
to be a part of this Agreement.
2
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]
Acting severally on behalf of
themselves and the several
Underwriters named herein
By: [Name of Executing Lead
Manager]
By:_______________________________
Name:
Title:
Accepted:
Time Warner Telecom Inc.
By: ________________________
Name:
Title:
