Charter Communications, Inc. 67,741,300 Shares Class A Common Stock ($.001 par value) Underwriting Agreement
Exhibit
99.1
Charter
Communications, Inc.
67,741,300
Shares
Class
A
Common Stock
($.001
par value)
November
21, 2005
Citigroup
Global Markets Inc.
000
Xxxxxxxxx Xxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Ladies
and Gentlemen:
Charter
Communications, Inc., a corporation organized under the laws of Delaware (the
“Company”),
proposes to issue to Citigroup Global Markets Inc. (the “Underwriter”)
67,741,300 shares of Class A Common Stock, $.001 par value (“Common
Stock”)
of the
Company (said shares to be issued by the Company being hereinafter called the
“Underwritten
Securities”)
in a
“best efforts” offering as described in a registration statement (file number
333-128838) on Form S-1, as amended, including a related preliminary
prospectus, for registration under the Act of the offering and sale of the
Underwritten Securities (the “Registration
Statement”).
The
Underwritten Securities are being issued pursuant to a Share Lending Agreement,
dated November 22, 2004, among the Company, the Underwriter and certain other
parties (the “Share
Lending Agreement”).
Certain terms used herein are defined in Section 17 hereof.
1.
Representations
and Warranties.
The
Company represents and warrants to, and agrees with, the Underwriter as set
forth below in this Section 1.
(a) The
Company has prepared and filed the Registration Statement with the Commission.
The Company has filed amendments thereto, including a related preliminary
prospectus, each of which has previously been furnished to you. The Company
will
next file with the Commission one of the following: either (1) prior
to the
Effective Date of such Registration Statement, a further amendment to such
Registration Statement (including the form of final prospectus) or
(2) after the Effective Date of such Registration Statement, a final
prospectus in accordance with Rules 430A and 424(b). In the case of
clause (2), the Company has included in such Registration Statement,
as
amended at the Effective Date, all information (other than Rule 430A
Information) required by the Act to be included in such Registration Statement
and the Prospectus. As filed, such amendment and form of final prospectus,
or
such final prospectus, shall contain all Rule 430A Information, together
with all other such required information,
and,
except to the extent the Underwriter shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you prior to
the
Execution Time or, to the extent not completed at the Execution Time, shall
contain only such specific additional information and other changes (beyond
that
contained in the latest Preliminary Prospectus) as the Company has advised
you,
prior to the Execution Time, will be included or made therein;
(b) On
each
Effective Date, the Registration Statement did or will, and when the Prospectus
is first filed (if required) in accordance with Rule 424(b) and on the
Closing Date (as defined herein) the Prospectus (and any supplements thereto)
will, comply in all material respects with the applicable requirements of the
Act; on each Effective Date and at the Execution Time, the Registration
Statement did not or will not contain any untrue statement of a material fact
or
omit to state any material fact required to be stated therein or necessary
in
order to make the statements therein not misleading; and, on each Effective
Date, the Prospectus, if not filed pursuant to Rule 424(b), will not,
and
on the date of any filing pursuant to Rule 424(b) and on the Closing
Date
and any settlement date, the Prospectus (together with any supplement thereto)
will not, include any untrue statement of a material fact or omit to state
a
material fact necessary in order to make the statements therein, in the light
of
the circumstances under which they were made, not misleading; provided,
however,
that
the Company makes no representations or warranties as to the information
contained in or omitted from the Registration Statement, or the Prospectus
(or
any supplement thereto) in reliance upon and in conformity with information
furnished in writing to the Company by or on behalf of the Underwriter
specifically for inclusion in the Registration Statement or the Prospectus
(or
any supplement thereto).
(c) None
of
the Company or any of its subsidiaries has sustained since the date of the
latest audited financial statements included in the Prospectus any material
loss
or interference with its business from fire, explosion, flood or other calamity,
whether or not covered by insurance, or from any court or governmental action,
order or decree, otherwise than as set forth or contemplated in the Prospectus;
and, since the respective dates as of which information is given in the
Prospectus, there has not been any material change in the capital stock or
limited liability company interests or long-term debt of the Company or any
of
its subsidiaries or any material adverse change, or any development involving
a
prospective material adverse change, in or affecting the general affairs,
management, financial position, members’ or stockholders’ equity or results of
operations of the Company’s subsidiaries, taken as a whole, otherwise than as
set forth or contemplated in the Prospectus;
(d) The
Company and each of its subsidiaries has good and marketable title to all real
property and good and valid title to all personal property owned by it reflected
as owned in the financial statements included in the Prospectus, in each case
free and clear of all liens, encumbrances and defects except such as are
described in the Prospectus or except such as do not materially affect the
value
of such property and do not interfere with the use made and proposed to be
made
of such property by the Company and its subsidiaries; and any real property
and
buildings held under lease by the Company and its subsidiaries are held by
them
under valid, subsisting and enforceable leases with such
2
exceptions
as are not material and do not interfere with the use made and proposed to
be
made of such property and buildings by the Company and its
subsidiaries;
(e) The
Company has been duly incorporated and is validly existing as a corporation
in
good standing under the laws of the State of Delaware, and has power and
authority to own its properties and conduct its business as described in the
Prospectus and to execute, deliver and perform its obligations under this
Agreement, and has been duly qualified as a foreign corporation for the
transaction of business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts any business
so
as to require such qualification; and is not subject to liability or disability
by reason of the failure to be so qualified in any such jurisdiction, except
such as would not, individually or in the aggregate, have a material adverse
effect on the current or future financial position, stockholders’ equity or
results of operations of the Company and the Company’s subsidiaries, taken as a
whole (a “Material
Adverse Effect”);
each
of the Company’s subsidiaries has been duly incorporated or formed, as the case
may be, and is validly existing as a corporation, partnership or limited
liability company, as the case may be, in good standing under the laws of its
jurisdiction of incorporation or formation, in each case except such as would,
individually or in the aggregate, not result in a Material Adverse
Effect;
(f) All
the
outstanding capital stock, limited liability company interests or partnership
interests, as the case may be, of the Company and each “significant subsidiary”
(as such term is defined in Rule 1-02 of Regulation S-X) of the Company (each
a
“Significant
Subsidiary”)
have
been duly and validly authorized and issued, are fully paid and nonassessable
and (except as otherwise set forth in the Prospectus) are owned directly or
indirectly by the Company, free and clear of all liens, encumbrances, equities
or claims;
(g) The
Company’s authorized equity capitalization is as set forth in the Prospectus;
the capital stock of the Company conforms to the description thereof contained
in the Prospectus; the outstanding shares of Common Stock have been duly
authorized and validly issued and are fully paid and nonassessable; the shares
of Underwritten Securities have been duly authorized and, when issued upon
payment of the Loan Fee (as defined herein) in accordance with the terms of
this
Agreement and the Share Lending Agreement, will be validly issued, fully paid
and nonassessable; the Board of Directors of the Company has duly and validly
adopted resolutions reserving such shares of Underwritten Securities for
issuance upon payment of the Loan Fee in accordance with the terms of this
Agreement and the Share Lending Agreement; the holders of outstanding shares
of
capital stock of the Company are not entitled to preemptive or other rights
to
subscribe for the Underwritten Securities; and, except as set forth in the
Prospectus, no options, warrants or other rights to purchase, agreements or
other obligations to issue, or rights to convert any obligations into or
exchange any securities for, shares of capital stock of or ownership interests
in the Company are outstanding;
(h) This
Agreement has been duly authorized and executed by the Company and constitutes
the legal, valid and binding obligation of the Company, enforceable
3
against
the Company in accordance with its terms (subject, as to enforcement, to
applicable bankruptcy, reorganization, insolvency, moratorium or other laws
affecting creditors’ rights generally from time to time in effect and to general
equitable principles, whether arising in equity or at law);
(i) The
Share
Lending Agreement has been duly authorized by the Company and constitutes the
legal, valid and binding obligation of the Company, enforceable against the
Company in accordance with its terms (subject, as to enforcement, to applicable
bankruptcy, reorganization, insolvency, moratorium or other laws affecting
creditors’ rights generally from time to time in effect and to general equitable
principles, whether arising in equity or at law);
(j) None
of
the transactions contemplated by this Agreement will violate or result in a
violation of Section 7 of the Exchange Act including Regulations T, U, and
X of
the Board of Governors of the Federal Reserve System;
(k) Prior
to
the date hereof, none of the Company or any of its affiliates has taken any
action which is designed to or which has constituted or which might have been
expected to cause or result in stabilization or manipulation of the price of
any
security of the Company in connection with the offering of the Underwritten
Securities;
(l) The
issue
and sale of the Underwritten Securities and the compliance by the Company with
all provisions of this Agreement and the Share Lending Agreement and the
consummation of the transactions herein and therein contemplated will not
conflict with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under, any indenture, mortgage, deed
of
trust, loan agreement, lease, license, franchise agreement, permit or other
agreement or instrument to which the Company or any of the Company’s
subsidiaries is a party or by which the Company or any of the Company’s
subsidiaries is bound or to which any of the property or assets of the Company
or any of the Company’s subsidiaries is subject, nor will such action result in
any violation of any statute or any order, rule or regulation of any court
or
governmental agency or body having jurisdiction over the Company or any of
the
Company’s subsidiaries or any of their properties, including the Communications
Act of 1934, as amended, the Cable Communications Policy Act of 1984, as
amended, the Cable Television Consumer Protection and Competition Act of 1992,
as amended, and the Telecommunications Act of 1996, as amended (collectively,
the “Cable
Acts”),
any
order, rule or regulation of the Federal Communications Commission (the
“FCC”),
or
the Order Instituting Cease and Desist Proceedings, Making Findings, and
Imposing a Cease and Desist Order Pursuant to Section 21C of the Exchange Act,
dated July 27, 2004, issued In the Matter of Charter Communications, Inc.,
except where such conflicts, breaches, violations or defaults would not,
individually or in the aggregate, have a Material Adverse Effect and would
not
have the effect of preventing the Company from performing any of its respective
obligations under the Share Lending Agreement and this Agreement; nor will
such
action result in any violation of the certificate of incorporation or bylaws
of
the Company; and no consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body is
required, including under the Cable Acts or any order, rule or regulation of
the
FCC, for the issue
4
and
sale
of the Underwritten Securities or the consummation by the Company of the
transactions contemplated by the Share Lending Agreement and this Agreement,
except registration of the Underwritten Securities under the Act and such
consents, approvals, authorizations, registrations or qualifications as have
been made or except as may be required under the state or foreign securities
or
Blue Sky laws in connection with the borrow and distribution of the Underwritten
Securities or such as may be required by the National Association of Securities
Dealers, Inc.;
(m) None
of
the Company or any of the Company’s subsidiaries is (i) in violation of its
certificate of incorporation, bylaws, certificate of formation, limited
liability company agreement, partnership agreement or other organizational
document, as the case may be, (ii) in default in the performance or observance
of any obligation, agreement, covenant or condition contained in any indenture,
mortgage, deed of trust, loan agreement, lease, license, permit or other
agreement or instrument to which it is a party or by which it or any of its
properties may be bound or (iii) in violation of the terms of any franchise
agreement, or any law, statute, rule or regulation or any judgment, decree
or
order, in any such case, of any court or governmental or regulatory agency
or
other body having jurisdiction over the Company or any of the Company’s
subsidiaries or any of their properties or assets, including the Cable Acts
or
any order, rule or regulation of the FCC, except, in the case of clauses (ii)
and (iii), such as would not, individually or in the aggregate, have a Material
Adverse Effect;
(n) The
statements set forth in the Prospectus under the caption “Risk Factors,”“Share
Lending Agreement,”“Regulation and Legislation,”“Description of Capital Stock
and Membership Units,”“Management,”“Certain Relationships and Related
Transactions,”“Description of Certain Indebtedness,”“Business,”“Management’s
Discussion and Analysis of Financial Condition and Results of Operations” and
“Certain United States Tax Consequences For Non-United States Holders,” insofar
as they purport to describe the provisions of the laws, documents and
arrangements referred to therein and to the extent not superseded by subsequent
disclosure, are accurate in all material respects;
(o) Other
than as set forth in the Prospectus, there
are
no legal or governmental proceedings (including by the FCC or any franchising
authority) pending to which the Company or any of the Company’s subsidiaries is
a party or of which any property of the Company or any of the Company’s
subsidiaries is the subject which, if determined adversely with respect to
the
Company or any of the Company’s subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect; and, to the best knowledge of the
Company and, except
as
disclosed in the Prospectus, no such proceedings are threatened or contemplated
by governmental authorities or threatened by others;
(p) The
Company and the Company’s subsidiaries carry insurance (including
self-insurance) in such amounts and covering such risks as in the reasonable
determination of the Company is adequate for the conduct of its business and
the
value of its properties;
5
(q) Except
as
set forth in the Prospectus, there is no strike, labor dispute, slowdown or
work
stoppage with the employees of any of the Company or its subsidiaries which
is
pending or, to the best knowledge of the Company, threatened which would,
individually or in the aggregate, have a Material Adverse Effect;
(r) The
Company is not and after giving effect to the offering and sale of the
Underwritten Securities will not be, an “investment company” or any entity
“controlled” by an “investment company” as such terms are defined in the
Investment Company Act of 1940, as amended;
(s) The
consolidated financial statements (including the notes thereto) included in
the
Prospectus present fairly in all material respects the respective consolidated
financial positions, results of operations and cash flows of the entities to
which they relate at the dates and for the periods to which they relate and
have
been prepared in accordance with U.S. generally accepted accounting principles
(“GAAP”)
applied on a consistent basis (except as otherwise noted therein). The selected
historical financial data in the Prospectus present fairly in all material
respects the information shown therein and have been prepared and compiled
on a
basis consistent with the audited financial statements included
therein;
(t) The
pro
forma financial information included in the Prospectus (i) complies as to form
in all material respects with the applicable requirements of Regulation S-X
for
Form S-1 promulgated under the Exchange Act, and (ii) has been properly computed
on the bases described therein; the assumptions used in the preparation of
the
pro forma financial information included in the Prospectus are reasonable and
the adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein;
(u) KPMG
LLP,
who has certified the financial statements included in the Prospectus, is a
firm
of independent public accountants as required by the Act, based upon
representations by such firm to the Company;
(v) The
Company and the Company’s subsidiaries own or possess, or can acquire on
reasonable terms, adequate licenses, trademarks, service marks, trade names
and
copyrights (collectively, “Intellectual
Property”)
necessary to conduct the business now or proposed to be operated by each of
them
as described in the Prospectus, except where the failure to own, possess or
have
the ability to acquire any Intellectual Property would not, individually or
in
the aggregate, have a Material Adverse Effect; and none of the Company or the
Company’s subsidiaries has received any notice of infringement of or conflict
with (and none actually knows of any such infringement of or conflict with)
asserted rights of others with respect to any Intellectual Property which,
if
any such assertion of infringement or conflict were sustained would,
individually or in the aggregate, have a Material Adverse Effect;
(w) Except
as
described in the Prospectus, the Company and the Company’s subsidiaries have
obtained all consents, approvals, orders, certificates, licenses, permits,
franchises and other authorizations of and from, and have made all declarations
and
6
filings
with, all governmental and regulatory authorities (including the FCC), all
self-regulatory organizations and all courts and other tribunals legally
necessary to own, lease, license and use their respective properties and
assets
and to conduct their respective businesses in the manner described in the
Prospectus, except to the extent that the failure to so obtain or file would
not, individually or in the aggregate, have a Material Adverse
Effect;
(x) Except
as
described in the Prospectus, the Company and the Company’s subsidiaries have
filed all necessary federal, state and foreign income and franchise tax returns
required to be filed as of the date hereof, except where the failure to so
file
such returns would not, individually or in the aggregate, have a Material
Adverse Effect, and have paid all taxes shown as due thereon; and there is
no
tax deficiency that has been asserted against the Company or any of its
subsidiaries (other than those which the amount or validity thereof are
currently being challenged in good faith by appropriate proceedings and with
respect to which reserves in conformity with GAAP have been provided on the
books of the relevant entity) that could reasonably be expected to result,
individually or in the aggregate, in a Material Adverse Effect;
(y) The
Company and the Company’s subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurances that (i) transactions
are
executed in accordance with management’s general or specific authorization; (ii)
transactions are recorded as necessary to permit preparation of financial
statements in conformity with GAAP and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management’s general
or specific authorization; and (iv) the recorded accountability for assets
is
compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences;
(z) Except
as
described in the Prospectus: (i) each of the franchises held by, or necessary
for any operations of, the Company and its subsidiaries that are material to
the
Company and its subsidiaries, taken as a whole, is in full force and effect,
with no material restrictions or qualifications; (ii) to the best knowledge
of
the Company, no event has occurred which permits, or with notice or lapse of
time or both would permit, the revocation or non-renewal of any such franchises,
assuming the filing of timely renewal applications and the timely payment of
all
applicable filing and regulatory fees to the applicable franchising authority,
or which would be reasonably likely to result, individually or in the aggregate,
in any other material impairment of the rights of the Company and the Company’s
subsidiaries in such franchises; and (iii) the Company has no reason to believe
that any franchise that is material to the operation of the Company and its
subsidiaries will not be renewed;
(aa) Except
as
described in the Prospectus, each of the programming agreements entered into
by,
or necessary for any operations of, the Company or its subsidiaries that are
material to the Company and its subsidiaries, taken as a whole, is in full
force
and effect (or in any cases where the Company or its subsidiaries and any
suppliers of content are operating in the absence of a programming agreement,
such content providers and the Company and its subsidiaries provide and receive
service in
7
accordance
with terms that have been agreed to or consistently acknowledged or accepted
by
both parties, including situations in which providers or suppliers of content
accept regular payment for the provision of such content); and to the best
knowledge of the Company, no event has occurred (or with notice or lapse
of time
or both would occur) which would be reasonably likely to result in the early
termination or non-renewal of any such programming agreements and which would,
individually or in the aggregate, result in a Material Adverse Effect; no
amendments or other changes to such programming agreements, other than
amendments relating to intra-company transfers, extensions of termination
dates
or pricing adjustments, together with other changes that are not in the
aggregate material, have been made to the copies of the programming agreements
provided for the review of the Underwriter or its counsel;
(bb) The
Company and the Company’s subsidiaries (i) are in compliance with any and all
applicable foreign, federal, state and local laws and regulations relating
to
the protection of human health and safety, the environment or hazardous or
toxic
substances or wastes, pollutants or contaminants (“Environmental
Laws”),
(ii)
have received all permits, licenses or other approvals required of them under
applicable Environmental Laws to conduct their respective businesses and (iii)
are in compliance with all terms and conditions of any such permit, license
or
approval, except where such noncompliance with Environmental Laws, failure
to
receive required permits, licenses or other approvals or failure to comply
with
the terms and conditions of such permits, licenses or approvals would not,
individually or in the aggregate, have a Material Adverse Effect;
(cc) The
Company maintains a system of disclosure controls and procedures to ensure
that
material information relating to the Company, including its consolidated
subsidiaries, is made known to each of them by others within those entities,
particularly during the period in which the periodic reports are being
prepared;
(dd) The
Registration Statement complied when it became effective, complies and, at
the
time of the loan of the Underwritten Securities and any additional time of
loan
of the Common Stock, will comply, and the Prospectus conformed as of its date,
conforms and, at the time of loan of the Underwritten Securities and any
additional time of loan of the Common Stock, will conform in all material
respects with the requirements of the Act and any statutes, regulations,
contracts or other documents that are required to be described in the
Registration Statement or the Prospectus or to be filed as exhibits to the
Registration Statement have been and will be so described or filed;
(ee) There
is,
and has been, no material failure on the part of the Company or the Company’s
subsidiaries, or any of their directors or officers, in their capacities as
such, to comply with any provision of the Sarbanes Oxley Act of 2002 (the
“Sarbanes Oxley Act”) and the rules and regulations promulgated in connection
therewith, including Section 402 related to loans and Sections 302 and 906
related to certifications; and
(ff) The
statistical and market-related data included in the Prospectus are based on
or
derived from sources that the Company believes to be reliable and
accurate.
8
Any
certificate signed by any officer of the Company and delivered to the
Underwriter or counsel for the Underwriter in connection with the offering
of
the Underwritten Securities shall be deemed a representation and warranty by
the
Company, as to matters covered thereby, to the Underwriter.
2.
Issuance
and Loan of Underwritten Securities.
Subject
to the terms and conditions of, and in reliance upon the representations and
warranties in, this Agreement and the Share Lending Agreement, the Company
agrees to issue to the Underwriter 67,741,300 shares of Class A Common Stock,
or
such lesser number as specified by the Underwriter pursuant to this Section
2,
and the Underwriter agrees to borrow from the Company (subject to the
Underwriter's obligation to repay such borrowings as provided in the Share
Lending Agreement), in exchange for the payment of a fee of $0.001 per share
(the “Loan
Fee”),
up to
67,741,300 shares of Class A Common Stock, or such lesser number as specified
by
the Underwriter at least one day prior to the Closing Date. This Agreement
constitutes a “Borrowing Notice” pursuant to Section 2(b) of the Share Lending
Agreement.
3.
Delivery
and Payment.
Delivery
of the Underwritten Securities and payment of the Loan Fee in respect thereof
shall be made at 10:00 AM, New York City time, on November 28, 2005,
or at
such time on such later date not more than three Business Days after the
foregoing date as the Underwriter shall designate (such date and time of
delivery and payment for the Underwritten Securities being herein called the
“Closing
Date”).
Delivery of the Underwritten Securities shall be made to the Underwriter for
the
account of the Underwriter against payment by the Underwriter of the Loan Fee
in
respect thereof to or upon the order of the Company by wire transfer payable
in
same-day funds to an account specified by the Company. Delivery of the
Underwritten Securities shall be made through the facilities of The Depository
Trust Company unless the Underwriter shall otherwise instruct.
4.
Offering
by Underwriter.
It is
understood that the Underwriter proposes to offer the Underwritten Securities
for sale to the public as set forth in the Prospectus.
5.
Agreements.
The
Company agrees with the Underwriter that:
(a)
The
Company will use its best efforts to cause the Registration Statement, if not
effective at the Execution Time, and any amendment thereof, to become effective.
Prior to the termination of the offering of the Underwritten Securities, the
Company will not file any amendment of the Registration Statement or supplement
to the Prospectus or any Rule 462(b) Registration Statement unless the
Company has furnished to the Underwriter a copy for its review prior to filing
and will not file any such proposed amendment or supplement to which the
Underwriter reasonably objects. Subject to the foregoing sentence, if the
Registration Statement has become or becomes effective pursuant to
Rule 430A, or if filing of the Prospectus is otherwise required under
Rule 424(b), the Company will cause the Prospectus, properly completed,
and
any supplement thereto to be filed in a form approved by the Underwriter with
the Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed by Rule 424(b) and will provide evidence satisfactory
to the Underwriter of
9
such
timely filing. The Company will promptly advise the Underwriter (1) when
the Registration Statement, if not effective at the Execution Time, shall
have
become effective, (2) when the Prospectus, and any supplement thereto,
shall have been filed (if required) with the Commission pursuant to
Rule 424(b) or when any Rule 462(b) Registration Statement
shall have
been filed with the Commission, (3) when, prior to termination of
the
offering of the Underwritten Securities, any amendment to the Registration
Statement shall have been filed or become effective, (4) of any request
by
the Commission or its staff for any amendment of the Registration Statement,
or
any Rule 462(b) Registration Statement, or for any supplement to the
Prospectus or for any additional information, (5) of the issuance
by the
Commission of any stop order suspending the effectiveness of the Registration
Statement or the institution or threatening of any proceeding for that purpose
and (6) of the receipt by the Company of any notification with respect
to
the suspension of the qualification of the Underwritten Securities for sale
in
any jurisdiction or the institution or threatening of any proceeding for
such
purpose. The Company will use its best efforts to prevent the issuance of
any
such stop order or the suspension of any such qualification and, if issued,
to
obtain as soon as possible the withdrawal thereof.
(b)
If,
at any time when a prospectus relating to the Underwritten Securities is
required to be delivered under the Act, any event occurs as a result of which
the Prospectus as then supplemented would include any untrue statement of a
material fact or omit to state any material fact necessary to make the
statements therein in the light of the circumstances under which they were
made
not misleading, or if it shall be necessary to amend the Registration Statement
or supplement the Prospectus to comply with the Act, the Company promptly will
(1) notify the Underwriter of any such event, (2) prepare and file with
the
Commission, subject to the second sentence of paragraph (a) of this
Section 5, an amendment or supplement which will correct such statement
or
omission or otherwise effect such compliance; and (3) supply any
supplemented Prospectus to the Underwriter in such quantities as the Underwriter
may reasonably request.
(c)
As
soon as practicable, the Company will make generally available to its security
holders and to the Underwriter an earnings statement or statements of the
Company and its subsidiaries which will satisfy the provisions of
Section 11(a) of the Act and Rule 158 under the Act.
(d)
The
Company will furnish to the Underwriter and counsel for the Underwriter signed
copies of the Registration Statement (including exhibits thereto) and, so long
as delivery of a prospectus by the Underwriter or a dealer may be required
by
the Act, as many copies of each Preliminary Prospectus and the Prospectus and
any supplement thereto as the Underwriter may reasonably request.
(e)
The
Company will arrange, if necessary, for the qualification of the Underwritten
Securities for sale under the laws of such jurisdictions as the Underwriter
may
designate and will maintain such qualifications in effect so long as required
for the distribution of the Underwritten Securities; provided that in no event
shall the Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified
10
or
to
take any action that would subject it to taxation or service of process in
suits, other than those arising out of the offering or sale of the Underwritten
Securities, in any jurisdiction where it is not now so subject.
(f) The
Company will comply with all applicable securities and other applicable laws,
rules and regulations, including the Sarbanes Oxley Act, and to use its best
efforts to cause the Company’s directors and officers, in their capacities as
such, to comply with such laws, rules and regulations, including the provisions
of the Sarbanes Oxley Act.
(g) The
Company will not take, directly or indirectly, any action designed to or that
would constitute or that might reasonably be expected to cause or result in,
under the Exchange Act or otherwise, stabilization or manipulation of the price
of any security of the Company to facilitate the sale or resale of the
Underwritten Securities.
(h) The
Company agrees to pay the costs and expenses relating to the following matters:
(i) the preparation, printing or reproduction and filing with the
Commission of the Registration Statement (including financial statements and
exhibits thereto), each Preliminary Prospectus, the Prospectus, and each
amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, each Preliminary
Prospectus, the Prospectus, and all amendments or supplements to any of them,
as
may, in each case, be reasonably requested for use in connection with the
offering and sale of the Underwritten Securities; (iii) the preparation,
printing, authentication, issuance and delivery of certificates for the
Underwritten Securities, including any stamp or transfer taxes in connection
with the original issuance and sale of the Underwritten Securities;
(iv) the printing (or reproduction) and delivery of this Agreement,
any
blue sky memorandum and all other agreements or documents printed (or
reproduced) and delivered in connection with the offering of the Underwritten
Securities; (v) the registration of the Underwritten Securities under
the
Exchange Act and the listing of the Underwritten Securities on the Nasdaq
National Market; (vi) any registration or qualification of the Underwritten
Securities for offer and sale under the securities or blue sky laws of the
several states (including filing fees and the reasonable fees and expenses
of
counsel for the Underwriter relating to such registration and qualification);
(vii) any filings required to be made with the National Association
of
Securities Dealers, Inc. (including filing fees and the reasonable fees and
expenses of counsel for the Underwriter relating to such filings);
(viii) the transportation and other expenses incurred by or on behalf
of
Company representatives in connection with presentations to prospective
purchasers of the Underwritten Securities; (ix) the fees and expenses
of
the Company's accountants and the fees and expenses of counsel (including local
and special counsel) for the Company; and (x) all other costs and expenses
incident to the performance by the Company of its obligations hereunder.
(i) The
Company will continue to comply with its obligations under the Share Loan
Registration Rights Agreement dated as of November 22, 2004, between the Company
and the Underwriter.
11
6.
Conditions
to the Obligations of the Underwriter.
The
obligations of the Underwriter to borrow the Underwritten Securities and pay
the
Loan Fee as provided herein shall be subject to the accuracy of the
representations and warranties on the part of the Company contained herein
as of
the Execution Time and the Closing Date, to the accuracy of the statements
of
the Company made in any certificates pursuant to the provisions hereof, to
the
performance by the Company of its obligations hereunder and to the following
additional conditions:
(a) (i)
If
the Registration Statement has not become effective prior to the Execution
Time,
unless the Underwriter agrees in writing to a later time, the Registration
Statement will become effective not later than (i) 6:00 PM New
York
City time on the date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on
such
date or (ii) 9:30 AM on the Business Day following the day on
which
the public offering price was determined, if such determination occurred after
3:00 PM New York City time on such date; if filing of the Prospectus,
or
any supplement thereto, is required pursuant to Rule 424(b), the
Prospectus, and any such supplement, will be filed in the manner and within
the
time period required by Rule 424(b); and no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall have been instituted or
threatened.
(ii)
If, at or subsequent
to the Execution Time it is necessary for the Registration Statement or a
post-effective amendment thereto to be declared effective, the Registration
Statement or such post-effective amendment shall have become effective no later
than such date and time as consented to in writing by the Underwriter, and
all
filings, if any, required by Rules 424(b) and 430A under the Act shall have
been
timely made.
(b)
The
Company shall have requested and caused Xxxxxx, Xxxx & Xxxxxxxx LLP, counsel
for the Company, to have furnished to the Underwriter their opinion, dated
the
Closing Date and addressed to the Underwriter, covering such matters as are
typically provided in opinions delivered in connection with underwritten equity
offerings, in form and substance reasonably satisfactory to you.
(c) Xxxx,
Raywid & Xxxxxxxxx L.L.P., special regulatory counsel to the Company, shall
have furnished to you their written opinion, dated the Closing Date, in form
and
substance reasonably satisfactory to you, to the effect that:
(i) The
issue
and sale of the Underwritten Securities and the compliance by the Company with
the Share Lending Agreement and the consummation of the transactions herein
and
therein contemplated do not and will not contravene the Cable Acts or any order,
rule or regulation of the FCC to which the Company or any of its subsidiaries
or
any of their property is subject; however, to the extent that any document
purports to grant a security interest in licenses issued by the FCC, the FCC
has
taken the position that security interests in FCC licenses are not valid. To
the
extent that any party seeks to exercise control of an FCC license in the event
of a default or for any other reason, it may be necessary to obtain prior FCC
consent;
12
(ii) To
the
best of such counsel’s knowledge, no consent, approval, authorization or order
of, or registration, qualification or filing with the FCC is required under
the
Cable Acts or any order, rule or regulation of the FCC in connection with the
issue and sale of the Underwritten
Securities
and the compliance by the Company with all the provisions of this Agreement
and
the Share Lending Agreement and the consummation of the transactions herein
and
therein contemplated; however, to the extent that any document purports to
grant
a security interest in licenses issued by the FCC, the FCC has taken the
position that security interests in FCC licenses are not valid; to the extent
that any party seeks to exercise control of an FCC license in the event of
a
default or for any other reason, it may be necessary to obtain prior FCC
consent;
(iii) The
statements set forth in the Prospectus under the caption “Regulation and
Legislation” and under the caption “Risk Factors” under the subheading “Risks
Related to Regulatory and Legislative Matters,” insofar as they constitute
summaries of laws referred to therein, concerning the Cable Acts and the
published rules, regulations and policies promulgated by the FCC thereunder,
fairly summarize the matters described therein;
(iv) To
such
counsel’s knowledge based solely upon its review of publicly available records
of the FCC and operational information provided by the Company’s and the
Company’s subsidiaries’ management, the Company and its subsidiaries hold all
FCC licenses for cable antenna relay services necessary to conduct the business
of the Company and its subsidiaries as currently conducted, except to the extent
the failure to hold such FCC licenses would not, individually or in the
aggregate, be reasonably expected to have a Material Adverse Effect;
and
(v) Except
as
disclosed in the Prospectus and except with respect to rate regulation matters,
and general rulemakings and similar matters relating generally to the cable
television industry, to such counsel’s knowledge, based solely upon its review
of the publicly available records of the FCC and upon inquiry of the Company’s
and its subsidiaries’ management, during the time the cable systems of the
Company and its subsidiaries have been owned by the Company and its subsidiaries
(A) there has been no adverse FCC judgment, order or decree issued by the FCC
relating to the ongoing operations of any of the Company or one of its
subsidiaries that has had or could reasonably be expected to have a Material
Adverse Effect; and (B) there are no actions, suits, proceedings, inquiries
or
investigations by or before the FCC pending or threatened in writing against
or
specifically affecting the Company or any of its subsidiaries or any cable
system of the Company or any of its subsidiaries which could, individually
or in
the aggregate, be reasonably expected to result in a Material Adverse
Effect;
(d) The
General Counsel of the Company, shall have furnished to the Underwriter his
written opinion, dated as of the Closing Date, in form and substance
satisfactory to you, to the effect that:
(i) Each
subsidiary of the Company listed on a schedule attached to such counsel’s
opinion (collectively, the “Charter
Subsidiaries”)
has
been duly incorporated or formed, as the case may be, and is validly existing
as
a corporation,
13
limited
liability company or partnership, as the case may be, in good standing under
the
laws of its jurisdiction of incorporation or formation; and all the issued
shares of capital stock, limited liability company interests or partnership
interests, as the case may be, of each Charter Subsidiary are set forth on
the
books and records of the Company and, except for those Charter Subsidiaries
that
are general partners, assuming receipt of requisite consideration therefor,
are
fully paid and nonassessable (in the case of corporate entities) and not
subject
to additional capital contributions (in the case of limited liability company
entities and limited partnerships); and, except as otherwise set forth in
the
Prospectus, and except for liens not prohibited under the credit agreements
listed on such schedule, all outstanding shares of capital stock of each
of the
Charter Subsidiaries are owned by the Company, either directly or indirectly
or
through wholly-owned subsidiaries free and clear of any perfected security
interest and, to the knowledge of such counsel, after due inquiry, any other
security interest, claim, lien or encumbrance;
(ii) Each
of
the Company and the Charter Subsidiaries has been duly qualified as a foreign
corporation, partnership or limited liability company, as the case may be,
for
the transaction of business and is in good standing under the laws of each
jurisdiction set forth in a schedule to such counsel’s opinion;
(iii) To
the
best of such counsel’s knowledge and other than as set forth in the Prospectus,
there are no legal or governmental proceedings pending to which the Company,
or
any of the Charter Subsidiaries is party or of which any property of the Company
or any of the Charter Subsidiaries is the subject, of a character required
to be
disclosed in the Registration Statement, which is not so disclosed, except
for
such proceedings which are not likely to have, individually or in the aggregate,
a Material Adverse Effect; and, to the best of such counsel’s knowledge and
other than as set forth in the Prospectus, no such proceedings are overtly
threatened by governmental authorities or by others; and
(iv) The
issue
and sale of the Underwritten Securities and the compliance by the Company with
all the provisions of the Share Lending Agreement and the consummation of the
transactions therein contemplated will not result in a violation of the
provisions of the certificate of incorporation or by-laws, or certificate of
formation or limited liability company agreement or partnership agreement,
as
the case may be, of any of the Charter Subsidiaries.
(e) At
the
Execution Time and also on the Closing Date, KPMG LLP shall have furnished
to
the Underwriter a “comfort” letter or letters of the type customarily provided
in connection with underwritten equity offerings, dated the respective dates
of
delivery thereof, in form and substance reasonably satisfactory to the
Underwriter;
(f)
The
Underwriter shall have received from Weil, Gotshal & Xxxxxx LLP, counsel for
the Underwriter, such opinion or opinions as are customarily provided by
underwriters' counsel in connection with the registration of equity securities
in underwritten offerings on Form S-1, dated the Closing Date and addressed
to
the Underwriter, with respect to the issuance and sale of the Underwritten
Securities, the
14
Registration
Statement and the Prospectus (together with any supplement thereto) and other
related matters as the Underwriter may reasonably require, and the Company
shall
have furnished to such counsel such documents as they request for the purpose
of
enabling them to pass upon such matters.
(g)
The
Company shall have furnished to the Underwriter a certificate of the Company,
signed by the Chairman of the Board or the President and the principal financial
or accounting officer of the Company, dated the Closing Date, to the effect
that
the signers of such certificate have carefully examined the Registration
Statement, the Prospectus, any supplements to the Prospectus and this Agreement
and that:
(i)
the
representations and warranties of the Company in this Agreement are true and
correct on and as of the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the agreements and satisfied
all the conditions on its part to be performed or satisfied at or prior to
the
Closing Date;
(ii)
no
stop order suspending the effectiveness of the Registration Statement has been
issued and no proceedings for that purpose have been instituted or, to the
Company's knowledge, threatened; and
(iii)
since the date of the most recent financial statements included in the
Prospectus (exclusive of any supplement thereto), there has been no material
adverse effect on the condition (financial or otherwise), prospects, earnings,
business or properties of the Company and its subsidiaries, taken as a whole,
whether or not arising from transactions in the ordinary course of business,
except as set forth in or contemplated in the Prospectus (exclusive of any
supplement thereto).
(h)
Subsequent to the Execution Time or, if earlier, the dates as of which
information is given in the Registration Statement (exclusive of any amendment
thereto) and the Prospectus (exclusive of any supplement thereto), there shall
not have been (i) any change or decrease specified in the letter or
letters
referred to in paragraph (e) of this Section 6 or (ii) any
change, or any development involving a prospective change, in or affecting
the
condition (financial or otherwise), earnings, business or properties of the
Company and its subsidiaries taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in or
contemplated in the Prospectus (exclusive of any supplement thereto) the effect
of which, in any case referred to in clause (i) or (ii) above, is, in
the
sole judgment of the Underwriter, so material and adverse as to make it
impractical or inadvisable to proceed with the offering or delivery of the
Underwritten Securities as contemplated by the Registration Statement (exclusive
of any amendment thereto) and the Prospectus (exclusive of any supplement
thereto).
(i)
Prior
to the Closing Date, the Company shall have furnished to the Underwriter such
further information, certificates and documents as the Underwriter may
reasonably request.
15
(j)
Subsequent to the Execution Time, there shall not have been any decrease in
the
rating of any of the Company's debt securities by any “nationally recognized
statistical rating organization” (as used for purposes of Rule 436(g) under the
Act) or any notice given of any intended or potential decrease in any such
rating or of a possible change in any such rating that does not indicate the
direction of the possible change.
(k)
The
Underwritten Securities shall have been listed and admitted and authorized
for
trading on the Nasdaq National Market, and satisfactory evidence of such actions
shall have been provided to the Underwriter.
If
any of
the conditions specified in this Section 6 shall not have been fulfilled
when and as provided in this Agreement, or if any of the opinions and
certificates mentioned above or elsewhere in this Agreement shall not be
reasonably satisfactory in form and substance to the Underwriter and counsel
for
the Underwriter, this Agreement and all obligations of the Underwriter hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Underwriter. Notice of such cancelation shall be given to the Company in writing
or by telephone or facsimile confirmed in writing.
The
documents required to be delivered by this Section 6 shall be delivered
at
the office of Weil, Gotshal & Xxxxxx LLP, counsel for the Underwriter, at
000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, on the Closing Date.
7.
Reimbursement
of Underwriter’s Expenses.
If the
sale of the Underwritten Securities provided for herein is not consummated
because any condition to the obligations of the Underwriter set forth in
Section 6 hereof is not satisfied, because of any termination pursuant
to
Section 9 hereof or because of any refusal, inability or failure on
the
part of the Company to perform any agreement herein or comply with any provision
hereof other than by reason of a default by the Underwriter, the Company will
reimburse the Underwriter on demand for all out-of-pocket expenses (including
reasonable fees and disbursements of counsel) that shall have been incurred
by
it in connection with the proposed loan and sale of the Underwritten
Securities.
8.
Indemnification
and Contribution.
(a) The
Company agrees to indemnify and hold harmless the Underwriter, the directors,
officers, employees and agents of the Underwriter and each person who controls
the Underwriter within the meaning of either the Act or the Exchange Act against
any and all losses, claims, damages or liabilities, joint or several, to which
they or any of them may become subject under the Act, the Exchange Act or other
Federal or state statutory law or regulations, at common law or otherwise,
insofar as such losses, claims, damages or liabilities (or actions in respect
thereof) arise out of or are based upon any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or in
any
Preliminary Prospectus or the Prospectus, or in any amendment thereof or
supplement thereto, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, and agrees to reimburse
each such indemnified party, as incurred, for any legal or other expenses
reasonably incurred by them in connection with investigating or
16
defending
any such loss, claim, damage, liability or action; provided,
however,
that
the Company will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any such
untrue
statement or alleged untrue statement or omission or alleged omission made
therein in reliance upon and in conformity with written information furnished
to
the Company by or on behalf of the Underwriter specifically for inclusion
therein. This indemnity agreement will be in addition to any liability which
the
Company may otherwise have.
(b)
The
Underwriter agrees to indemnify and hold harmless the Company, each of its
directors, each of its officers who signs the Registration Statement, and each
person who controls the Company within the meaning of either the Act or the
Exchange Act, to the same extent as the foregoing indemnity from the Company
to
the Underwriter, but only with reference to written information relating to
the
Underwriter furnished to the Company by or on behalf of the Underwriter
specifically for inclusion in the documents referred to in the foregoing
indemnity. This indemnity agreement will be in addition to any liability which
the Underwriter may otherwise have. The Company acknowledges that the statements
set forth (i) in the last paragraph of the cover page regarding delivery of
the
Underwritten Securities, (ii) under the heading “Share Lending Agreement,” (A)
the bulleted language in the seventh-to-last paragraph, (B) the first and second
sentences of the sixth-to-last paragraph and (C) the third and fourth sentences
in the third bullet of the fifth-to-last paragraph and (iii) under the heading
“Underwriting,” (A) the third-to-last sentence of the first paragraph and (B)
all the third paragraph other than the clause following the comma in the last
sentence of the paragraph of the Preliminary Prospectus and the Prospectus
constitute the only information furnished in writing by or on behalf of the
Underwriter for inclusion in any Preliminary Prospectus or the
Prospectus.
(c)
Promptly after receipt by an indemnified party under this Section 8
of
notice of the commencement of any action, such indemnified party will, if a
claim in respect thereof is to be made against the indemnifying party under
this
Section 8, notify the indemnifying party in writing of the commencement
thereof; but the failure so to notify the indemnifying party (i) will
not
relieve the indemnifying party from liability under paragraph (a)
or (b) above unless and to the extent the indemnifying party did not
otherwise learn of such action and such failure results in the forfeiture by
the
indemnifying party of substantial rights and defenses and (ii) will
not, in
any event, relieve the indemnifying party from any obligations to any
indemnified party other than the indemnification obligation provided in
paragraph (a) or (b) above. The indemnifying party shall be entitled
to
appoint counsel of the indemnifying party's choice at the indemnifying party's
expense to represent the indemnified party in any action for which
indemnification is sought (in which case the indemnifying party shall not
thereafter be responsible for the fees and expenses of any separate counsel
retained by the indemnified party or parties except as set forth below);
provided,
however,
that
such counsel shall be satisfactory to the indemnified party. Notwithstanding
the
indemnifying party's election to appoint counsel to represent the indemnified
party in an action, the indemnified party shall have the right to employ
separate counsel (including local counsel), and the indemnifying party shall
bear the reasonable fees, costs and expenses of such separate counsel if
(i) the use of counsel chosen by the indemnifying party to represent
the
indemnified party would present such counsel with a conflict of interest,
(ii) the actual or
17
potential
defendants in, or targets of, any such action include both the indemnified
party
and the indemnifying party and the indemnified party shall have reasonably
concluded that there may be legal defenses available to it and/or other
indemnified parties which are different from or additional to those available
to
the indemnifying party, (iii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution
of
such action or (iv) the indemnifying party shall authorize the indemnified
party to employ separate counsel at the expense of the indemnifying party.
An
indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to the entry of any
judgment with respect to any pending or threatened claim, action, suit or
proceeding in respect of which indemnification or contribution may be sought
hereunder (whether or not the indemnified parties are actual or potential
parties to such claim or action) unless such settlement, compromise or consent
includes an unconditional release of each indemnified party from all liability
arising out of such claim, action, suit or proceeding.
(d)
In
the event that the indemnity provided in paragraph (a) or (b) of this
Section 8 is unavailable to or insufficient to hold harmless an indemnified
party for any reason, the Company and the Underwriter severally agree to
contribute to the aggregate losses, claims, damages and liabilities (including
legal or other expenses reasonably incurred in connection with investigating
or
defending the same) (collectively “Losses”)
to
which the Company and the Underwriter may be subject in such proportion as
is
appropriate to reflect the relative benefits received by the Company on the
one
hand and by the Underwriter on the other from the offering of the Underwritten
Securities; provided,
however,
that in
no case shall the Underwriter be responsible for any amount in excess of the
underwriting discount or commission applicable to the Underwritten Securities
borrowed by the Underwriter hereunder. If the allocation provided by the
immediately preceding sentence is unavailable for any reason, the Company and
the Underwriter severally shall contribute in such proportion as is appropriate
to reflect not only such relative benefits but also the relative fault of the
Company on the one hand and of the Underwriter on the other in connection with
the statements or omissions which resulted in such Losses as well as any other
relevant equitable considerations. Benefits received by the Company shall be
deemed to be equal to the total net proceeds from the offering (before deducting
expenses) received by it, and benefits received by the Underwriter shall be
deemed to be equal to the total underwriting discounts and commissions, in
each
case as set forth on the cover page of the Prospectus. Relative fault shall
be
determined by reference to, among other things, whether any untrue or any
alleged untrue statement of a material fact or the omission or alleged omission
to state a material fact relates to information provided by the Company on
the
one hand or the Underwriter on the other, the intent of the parties and their
relative knowledge, access to information and opportunity to correct or prevent
such untrue statement or omission. The Company and the Underwriter agree that
it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of
the
equitable considerations referred to above. Notwithstanding the provisions
of
this paragraph(d), no person guilty of fraudulent misrepresentation (within
the
meaning of Section 11(f) of the Act) shall be entitled to contribution
from
any person who was not guilty of such fraudulent misrepresentation. For purposes
of this Section 8,
18
each
person who controls the Underwriter within the meaning of either the Act
or the
Exchange Act and each director, officer, employee and agent of the Underwriter
shall have the same rights to contribution as the Underwriter, and each person
who controls the Company within the meaning of either the Act or the Exchange
Act, each officer of the Company who shall have signed the Registration
Statement and each director of the Company shall have the same rights to
contribution as the Company, subject in each case to the applicable terms
and
conditions of this paragraph (d).
9.
Termination.
This
Agreement shall be subject to termination in the absolute discretion of the
Underwriter, by notice given to the Company prior to delivery of and payment
for
the Underwritten Securities, if at any time prior to such time (i) trading
in the Company's Common Stock shall have been suspended by the Commission or
the
Nasdaq National Market or trading in securities generally on the New York Stock
Exchange or the Nasdaq National Market shall have been suspended or limited
or
minimum prices shall have been established the New York Stock Exchange or the
Nasdaq National Market, (ii) a banking moratorium shall have been declared
either by Federal or New York State authorities or (iii) there shall
have
occurred any outbreak or escalation of hostilities, declaration by the United
States of a national emergency or war, or other calamity or crisis the effect
of
which on financial markets is such as to make it, in the sole judgment of the
Underwriter, impractical or inadvisable to proceed with the offering or delivery
of the Underwritten Securities as contemplated by the Prospectus (exclusive
of
any supplement thereto)
10.
Representations
and Indemnities to Survive.
The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriter set forth
in or
made pursuant to this Agreement will remain in full force and effect, regardless
of any investigation made by or on behalf of the Underwriter or the Company
or
any of the officers, directors, employees, agents or controlling persons
referred to in Section 8 hereof, and will survive delivery of and payment
for the Underwritten Securities. The provisions of Section 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
11.
Notices.
All
communications hereunder will be in writing and effective only on receipt,
and,
if sent to the Underwriter, will be mailed, delivered or telefaxed to the
Citigroup Global Markets Inc. General Counsel (fax no.: (000) 000-0000)
and
confirmed to the General Counsel, Citigroup Global Markets Inc., at 000
Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: General Counsel; or,
if
sent to the Company, will be mailed, delivered or telefaxed to Charter
Communications, Inc., attention: General Counsel (fax no. (000) 000-0000) and
confirmed to it Charter Communications, Inc., 00000 Xxxxxxxxxxx Xxxxx, Xx.
Xxxxx
XX 00000, attention General Counsel.
12.
No
Fiduciary Duty.
The
Company hereby acknowledges that (a) the Underwriter is acting as principal
and
not as an agent or fiduciary of the Company and (b) its engagement of the
Underwriter in connection with the Offering is as an independent contractor
and
not in any other capacity. Furthermore, the Company agrees that it is solely
responsible for making its own judgments in connection with the offering
19
(irrespective
of whether the Underwriter has advised or is currently advising the Company
on
related or other matters).
13.
Successors.
This
Agreement will inure to the benefit of and be binding upon the parties hereto
and their respective successors and the officers, directors, employees, agents
and controlling persons referred to in Section 8 hereof, and no other
person will have any right or obligation hereunder.
14.
Applicable
Law.
This
Agreement will be governed by and construed in accordance with the laws of
the
State of New York applicable to contracts made and to be performed within the
State of New York.
15.
Counterparts.
This
Agreement may be signed in one or more counterparts, each of which shall
constitute an original and all of which together shall constitute one and the
same agreement.
16. Headings.
The
section headings used herein are for convenience only and shall not affect
the
construction hereof.
17.
Definitions.
The
terms which follow, when used in this Agreement, shall have the meanings
indicated.
“Act”
shall mean the Securities Act of 1933, as amended, and the rules and regulations
of the Commission promulgated thereunder.
“Business
Day” shall mean any day other than a Saturday, a Sunday or a legal holiday
or a day on which banking institutions or trust companies are authorized or
obligated by law to close in New York City.
“Commission”
shall mean the Securities and Exchange Commission.
“Convertible
Notes” shall mean the Company’s 5.875% Convertible Senior Notes due
2009.
“Effective
Date” shall mean each date and time that the Registration Statement, any
post-effective amendment or amendments thereto and any Rule 462(b)
Registration Statement became or become effective.
“Exchange
Act” shall mean the Securities Exchange Act of 1934, as amended, and the rules
and regulations of the Commission promulgated thereunder.
“Execution
Time” shall mean the date and time that this Agreement is executed and delivered
by the parties hereto.
“Preliminary
Prospectus” shall mean any preliminary prospectus referred to in
paragraph 1(a) above and any preliminary prospectus included in the
Registration Statement at the Effective Date that omits Rule 430A
Information.
20
“Prospectus”
shall mean the prospectus relating to the Underwritten Securities that is first
filed pursuant to Rule 424(b) after the Execution Time or, if no filing
pursuant to Rule 424(b) is required, shall mean the form of final
prospectus relating to the Underwritten Securities included in the Registration
Statement at the Effective Date.
“Registration
Statement” shall mean the registration statement referred to in
paragraph 1(a) above, including exhibits and financial statements, as
amended at the Execution Time (or, if not effective at the Execution Time,
in
the form in which it shall become effective) and, in the event any
post-effective amendment thereto or any Rule 462(b) Registration Statement
becomes effective prior to the Closing Date, shall also mean such registration
statement as so amended or such Rule 462(b) Registration Statement,
as the
case may be. Such term shall include any Rule 430A Information deemed
to be
included therein at the Effective Date as provided by
Rule 430A.
“Rule 424”,
“Rule 430A” and “Rule 462” refer to such rules under the
Act.
“Rule 430A
Information” shall mean information with respect to the Underwritten Securities
and the offering thereof permitted to be omitted from the Registration Statement
when it becomes effective pursuant to Rule 430A.
“Rule 462(b)
Registration Statement” shall mean a registration statement and any amendments
thereto filed pursuant to Rule 462(b) relating to the offering covered
by
the registration statement referred to in Section 1(a) hereof.
When
used
herein, the word “including” shall be deemed to be followed by the words
“without limitation” unless the context otherwise requires.
21
If
the
foregoing is in accordance with your understanding of our agreement, please
sign
and return to us the enclosed duplicate hereof, whereupon this letter and your
acceptance shall represent a binding agreement among the Company and the
Underwriter.
Very
truly yours,
Charter
Communications, Inc.
By:
/s/ Xxxx X.
Xxxxxx
Name:
Xxxx X. Xxxxxx
Title:
Senior Vice President,
Interim
Chief Financial Officer and Controller
The
foregoing Agreement is hereby
confirmed
and accepted as of the
date
first above written.
Citigroup
Global Markets Inc.
By:
Citigroup Global Markets Inc.
By: /s/
Xxxxx Xxx
Xxxxx
Name:
Xxxxx Xxx Xxxxx
Title:
Vice President
