EXHIBIT 1
UNDERWRITING AGREEMENT
November 2, 1999
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Underwriter") understand that Comcast Corporation, a Pennsylvania
corporation (the "Company"), proposes to issue and sell $571,427,500 aggregate
principal amount of 2.0% Exchangeable Subordinated Debentures due November 2029
(the "Offered Securities"). The Offered Securities are to be issued pursuant to
the provisions of the Indenture (the "Indenture") by and between the Company
and Bankers Trust Company (the "Trustee").
Subject to the terms and conditions set forth or incorporated by reference
herein, the Company hereby agrees to sell and the Underwriter agrees to
purchase 7,000,000 Offered Securities set forth below at a purchase price of
$80.00 per ZONES (as hereinafter defined), plus accrued interest, if any, from
November 5, 1999 to the date of payment and delivery (the "Purchase Price").
The Underwriter will pay for the Offered Securities upon delivery thereof
at the offices of Xxxxx Xxxx & Xxxxxxxx, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx at 10:00 a.m. (New York time) on November 5, 1999, or at such other time,
not later than 5:00 p.m. (New York time) on November 10, 1999 as shall be
designated in writing by the Underwriter and the Company. The time and date of
such payment and delivery are hereinafter referred to as the Closing Date.
The Offered Securities shall have the terms set forth in the Prospectus
dated September 15, 1999, and the Prospectus Supplement dated November 2, 1999
(together, the "Prospectus"), including the following:
Terms of Offered Securities
Securities: 2.0% Exchangeable Subordinated Debentures due November 2029
(each, a "ZONES").
Maturity Date: November 15, 2029.
Interest Rate: Interest will be paid quarterly in an amount equal to
$0.4082 per ZONES, or 2.0% per year of the original principal amount,
plus the amount of any cash dividend paid on the reference shares
attributable to each ZONES.
Redemption Provisions: Company may redeem at any time all but not some
of the ZONES as a redemption price equal to the sum of (a) the higher
of the Contingent Principal Amount of the ZONES or the sum of the
Current Market Value of the Reference Shares plus any deferred
quarterly payments of interest, plus, in either case, the Final Period
Distribution, and (b) $3.6735 per ZONES if redeemed prior to November
15, 2000, $2.4490 per ZONES if redeemed prior to November 15, 2001,
$1.2245 per ZONES if redeemed prior to November 15, 2002, or zero per
ZONES if redeemed any time on or after November 15, 2002.
If, at any time on or prior to January 30, 2000, a "tax event" shall
occur and be continuing, the Company will have the right exercisable
within 180 days after such "tax event", upon not less than 15 business
days notice, to redeem the ZONES, in whole, at a redemption price
equal to the higher of the Contingent Principal Amount of the ZONES or
the sum of the Current Market Value of the Reference Shares,
determined by reference to an averaging period of 5 rather than 20
trading days, plus, in either case, the Final Period Distribution
(computed by accounting for the 5 day averaging period), plus any
deferred quarterly payments of interest.
A "tax event" means that the Trustee shall have received an opinion of
nationally recognized independent tax counsel experienced in such
matters to the effect that as a result of (a) any amendment to,
clarification of, or change (including any announced prospective
change) in the laws, or any regulations thereunder, of the United
States or any political subdivision or taxing authority thereof or
therein, or (b) any judicial decision, official administrative
pronouncement, ruling, regulatory procedure, notice or announcement,
including any notice or announcement of intent to adopt such
procedures or regulations, in each case, on or after the date of the
prospectus supplement (a "change in tax law"), there is the creation
by such change in tax law of a substantial risk that, as a result of
entrance into the ZONES, the Company will be treated for purposes of
Section 1259 of the Internal Revenue Code as having constructively
sold some or all of its Sprint Corporation PCS Stock.
Interest Payment Dates: February 15, May 15, August 15, and November 15
commencing February 15, 2000.
Form and Denomination: One Global ZONES will be deposited with The
Depository Trust Company and the ZONES will be transferrable by
book-entry only.
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Ranking: Unsecured and subordinated obligations of the Company.
Conversion Provisions: Not applicable.
Exchange Provisions: Exchangeable, at holder's option, for an amount
of cash equal to 95% (subject to adjustment as described in the
Prospectus) of the market value of a share of Sprint Corporation PCS
stock and any other publicly traded equity securities that may be
distributed on or in respect of the Sprint PCS Stock.
Lock Up: Company will not, during the period ending 45 days after the
date of the Prospectus Supplement, directly or indirectly offer, sell,
offer to sell, grant any option for the sale of or otherwise dispose
of any ZONES, any securities convertible into or exchangeable for the
ZONES or any equity securities substantially similar to the ZONES
without the prior written consent of Xxxxxxx Xxxxx Xxxxxx, Inc.
Over-allotment Option: The Underwriter will have the option to
purchase up to 1,050,000 additional ZONES at the Purchase Price to
cover over-allotments. The Underwriter can exercise this option for a
period of 30 days after the date hereof.
Other Terms: This Agreement may be terminated in the absolute
discretion of the Underwriter by notice given to the Company, if
between 12:01am and 6:00pm, New York City time, on November 2, 1999,
there shall have occurred any development relating to or affecting the
proposed merger between Sprint Corporation and MCI WorldCom Inc. which
would, in the judgment of the Underwriter, make it impracticable or
inadvisable to consummate the offering of the ZONES.
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus referred to above.
Except as set forth below, all provisions contained in the document
entitled Comcast Corporation Underwriting Agreement Standard Provisions (Debt
Securities, Warrants, Purchase Contracts and Units) dated September 20, 1999
(the "Standard Provisions"), a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part of
this Agreement to the same extent as if such provisions had been set forth in
full herein, except that (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.
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Please confirm your agreement by having an authorized officer sign a copy of
this Agreement in the space set forth below.
Very truly yours,
XXXXXXX XXXXX BARNEY INC.
XXXXXXX LYNCH, PIERCE, XXXXXX &
XXXXX INCORPORATED
Acting severally on behalf of themselves
and the several Underwriters named herein
By: XXXXXXX XXXXX BARNEY INC.
By: /s/ Xxxx X. Xxxxxx
----------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President
Accepted:
COMCAST CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: Vice President - Finance
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COMCAST CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, WARRANTS, PURCHASE CONTRACTS AND UNITS)
September 20, 1999
From time to time, Comcast Corporation, a Pennsylvania 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 referred to as this Agreement. Terms defined in the Underwriting
Agreement are used herein as therein defined.
The Company proposes to issue from time to time (a) its debt securities
("Debt Securities"), (b) warrants ("Warrants") and (c) purchase contracts
("Purchase Contracts") requiring the holders thereof to purchase or sell (i)
securities of an entity unaffiliated with the Company, a basket of such
securities, an index or indices of such securities or any combination of the
above, (ii) currencies or composite currencies or (iii) commodities. Debt
Securities, Purchase Contracts and Warrants or any combination thereof may be
offered in the form of Units ("Units"). As used herein, the term "Debt
Securities" includes prepaid Purchase Contracts.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement including a prospectus relating to the
Debt Securities, Warrants, Purchase Contracts and Units (collectively, the
"Securities") and has filed with, or transmitted for filing to, or shall
promptly after the date of the Underwriting Agreement file with or transmit for
filing to, the Commission a prospectus supplement (the "Prospectus Supplement")
pursuant to Rule 424 under the Securities Act of 1933, as amended (the
"Securities Act"), specifically relating to the Securities offered pursuant to
this Agreement (the "Offered Securities"). The term Registration Statement
means the registration statement as amended to the date of the Underwriting
Agreement including any additional registration statement filed by the Company
pursuant to Rule 462(b). The term Basic Prospectus means the prospectus
included in the Registration Statement. The term Prospectus means the Basic
Prospectus together with the Prospectus Supplement. The term preliminary
prospectus means a preliminary
prospectus supplement specifically relating to the Offered Securities, together
with the Basic Prospectus. As used herein, the terms "Basic Prospectus",
"Prospectus" and "preliminary prospectus" shall include in each case the
documents, if any, incorporated by reference therein. The terms "supplement",
"amendment" and "amend" as used herein shall include all documents deemed to be
incorporated by reference in the Prospectus that are filed subsequent to the
date of the Basic Prospectus by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "Exchange Act"). If the
Company has filed an abbreviated registration statement to register additional
Debt Securities and Warrants pursuant to Rule 462(b) under the Securities Act
(the "Rule 462 Registration Statement"), then any reference herein to the term
"Registration Statement" shall be deemed to include such Rule 462 Registration
Statement.
1. Representations and Warranties. The Company represents and warrants to
each of the Underwriters as of the date of the Underwriting Agreement that (i)
each document filed or to be filed pursuant to the Exchange Act and
incorporated by reference in the Prospectus complied or will comply when so
filed in all material respects with the Exchange Act and the rules and
regulations of the Commission thereunder and (ii) the Registration Statement
and Prospectus comply in all material respects with the Securities Act and the
rules and regulations of the Commission thereunder and do not contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary to make the statements therein not
misleading, except that the foregoing representations and warranties do not
apply to (a) that part of the Registration Statement which shall constitute the
Statement of Eligibility of the Trustee on Form T-1 (the "Form T-1") and (b)
statements or omissions in the Registration Statement or the Prospectus or any
amendment or supplement thereto based upon information furnished to the Company
in writing by any Underwriter through the Manager expressly for use therein.
2. Public Offering. The Company is advised by the Manager that the
Underwriters propose to make a public offering of their respective portions of
the Offered Securities as soon after this Agreement has been entered into as in
the Manager's judgment is advisable. The terms of the public offering of the
Offered Securities are set forth in the Prospectus.
3. Purchase and Delivery. Except as otherwise provided in this Section 3,
payment for the Offered Securities shall be made to the Company in Federal or
other funds immediately available in New York City at the time and place set
forth in the Underwriting Agreement, upon delivery to the Manager for the
respective accounts of the several Underwriters of the Offered Securities
registered in such names and in such denominations as the Manager shall request
in writing not less than one full business day prior to the date of delivery,
with any transfer taxes payable in connection with the transfer of the Offered
Securities to the Underwriters duly paid.
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4. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall be
pending before or threatened by the Commission, and there shall have been
no material adverse change in the condition, business or operations of the
Company and its subsidiaries, as a whole, from that set forth in the
Prospectus; and the Manager shall have received, on the Closing Date, a
certificate, dated the Closing Date and signed by an executive officer of
the Company, to the foregoing effect. Such certificate will also provide
that the representations and warranties of the Company contained herein
are true and correct as of the Closing Date. The officer making such
certificate may rely upon the best of his knowledge as to proceedings
threatened.
(b) The Manager shall have received on the Closing Date an opinion of
Xxxxxx X. Block, Esquire, Senior Deputy General Counsel of the Company,
dated the Closing Date, to the effect that:
(i) the Company has been duly incorporated, is validly existing
as a corporation subsisting under the laws of the Commonwealth of
Pennsylvania and is duly qualified to transact business and is in
good standing in each jurisdiction in which the conduct of its
business or its ownership or leasing of property requires such
qualification (except where the failure to so qualify would not have
a material adverse effect upon the business or financial condition of
the Company and its subsidiaries, as a whole),
(ii) each of Comcast Cable Communications, Inc. and QVC, Inc.
(such corporations are together the "specified subsidiaries" of the
Company and each is a "specified subsidiary" of the Company) has been
duly incorporated, is validly existing as a corporation in good
standing under the laws of the jurisdiction of its incorporation and
is duly qualified to transact business and is in good standing in
each jurisdiction in which the conduct of its business or its
ownership or leasing of property requires such qualification (except
where the failure to so qualify would not have a material adverse
effect upon the business or financial condition of the Company and
its subsidiaries, as a whole),
(iii) each of the Senior Indenture dated as of June 15, 1999
(the "Senior Indenture") between the Company and Bank of Montreal
Trust Company, as trustee, and the Subordinated Indenture dated as of
June 15, 1999 (the "Subordinated Indenture") between the Company and
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Bankers Trust Company, as trustee has been duly authorized, executed
and delivered by the Company,
(iv) the Warrant Agreement, if any, has been duly authorized,
executed and delivered by the Company,
(v) the Unit Agreement, if any, has been duly authorized,
executed and delivered by the Company,
(vi) the Offered Securities have been duly authorized by the
Company,
(vii) this Agreement has been duly authorized, executed and
delivered by the Company,
(viii) except as rights to indemnity and contribution under this
Agreement may be limited under applicable law, the execution and
delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement, the Senior Indenture, the
Subordinated Indenture, the Offered Securities, the Warrant Agreement
and the Unit Agreement, if any, will not contravene any provision of
applicable law of the United States (except with respect to laws
relating specifically to the cable communications industry, as to
which such counsel is not called upon to express any opinion),
Pennsylvania, or, to the best knowledge of such counsel, of any other
state or jurisdiction of the United States or of any foreign
jurisdiction (in which foreign jurisdiction the Company or any
specified subsidiary does business which is material to the Company
and its subsidiaries, as a whole), or the articles of incorporation
or by-laws of the Company or, to the best knowledge of such counsel,
any agreement or other instrument binding upon the Company, and,
except for the orders of the Commission making the Registration
Statement effective and the Senior Indenture and the Subordinated
Indenture qualified under the Trust Indenture Act of 1939, as amended
(the "Trust Indenture Act") (which have been obtained) and such
permits or similar authorizations required under the securities or
Blue Sky laws of certain states or foreign jurisdictions (as to which
such counsel is not called upon to express any opinion), no consent,
approval or authorization of any governmental body or agency of the
United States (except with respect to consents, approvals and
authorizations relating specifically to the cable communications
industry, as to which such counsel is not called upon to express any
opinion), Pennsylvania, or, to the best knowledge of such counsel, of
any other state or jurisdiction of the United States or of any
foreign jurisdiction is required for the performance by the Company
of its obligations under this Agreement, the Senior Indenture, the
Subordinated Indenture, the
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Offered Securities, the Warrant Agreement and the Unit Agreement, if
any,
(ix) subject to such qualification as may be set forth in the
Prospectus, the Company and its subsidiaries have, and are in
material compliance with, such franchises, and to the best knowledge
of such counsel after reasonable investigation, such licenses and
authorizations, as are necessary to own their cable communications
properties and to conduct their cable communications business in the
manner described in the Prospectus, except where the failure to have,
or comply with, such franchises, licenses and authorizations would
not have a material adverse effect on the business or financial
condition of the Company and its subsidiaries, as a whole, and such
franchises, licenses and authorizations contain no materially
burdensome restrictions not adequately described in the Prospectus,
which restrictions would have a material adverse effect on the
business or financial condition of the Company and its subsidiaries,
as a whole,
(x) the statements (A) in Item 3 of the Company's most recent
Annual Report on Form 10-K incorporated by reference in the
Prospectus, (B) in Part II, Item 1 under the caption "Legal
Proceedings" of the Company's most recent Quarterly Report on Form
10-Q incorporated by reference in the Prospectus and (C) in the
Registration Statement in Item 15, insofar as such statements
constitute a summary of the legal matters, documents or proceedings
referred to therein, fairly present the information called for with
respect to such legal matters, documents and proceedings,
(xi) such counsel does not know of any legal or governmental
proceeding pending or 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 which is required to be
described in the Registration Statement or the Prospectus and is not
so described or of any contract or other document which is required
to be described in the Registration Statement or the Prospectus or to
be filed as an exhibit to the Registration Statement which is not
described or filed as required,
(xii) the securities into which the Offered Securities are
convertible, initially reserved for issuance upon conversion of the
Offered Securities (the "Underlying Securities") have been duly
authorized and reserved for issuance, and
(xiii) when the Underlying Securities are issued upon conversion
of the Offered Securities in accordance with the terms of the Offered
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Securities, such Underlying Securities will be validly issued, fully
paid and non-assessable and will not be subject to any preemptive or
other right to subscribe for or purchase such Underlying Securities.
Such counsel shall also state that no facts have come to his attention
that lead him to believe (1) that the Registration Statement or any amendments
thereto (except for the financial statements and other financial or statistical
data included or incorporated by reference therein or omitted therefrom and the
Form T-1, as to which such counsel is not called upon to express any belief),
on the date on which it became effective or the date of filing of the most
recent subsequent Annual Report on Form 10-K, contained an untrue statement of
a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading; (2) that
the Prospectus, as amended or supplemented, if applicable (except for the
financial statements and other financial or statistical data included or
incorporated by reference therein or omitted therefrom, as to which such
counsel is not called upon to express any belief), at the date of the
Underwriting Agreement or at the Closing Date, contained or contains an untrue
statement of a material fact or omitted or omits to state a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they are made, not misleading; or (3) that the
documents incorporated by reference in the Prospectus (except for the financial
statements and other financial or statistical data included or incorporated by
reference therein or omitted therefrom, as to which such counsel is not called
upon to express any belief), as of the dates they were filed with the
Commission, contained an untrue statement of a material fact or omitted to
state a material fact necessary in order to make the statements therein, in the
light of the circumstances under which they are made, not misleading.
With respect to the preceding paragraph, such counsel may state that his
opinion and belief is based upon his participation in the preparation of the
Registration Statement, Prospectus (as amended or supplemented) and the
documents incorporated therein by reference and review and discussion of the
contents thereof, but is without independent check or verification except as
specified.
In expressing his opinion as to questions of the law of jurisdictions
other than the Commonwealth of Pennsylvania and the United States, such counsel
may rely to the extent reasonable on such counsel as may be reasonably
acceptable to counsel to the Underwriters. In addition, such counsel may
reasonably rely as to questions of fact on certificates of responsible officers
of the Company.
(c) The Manager shall have received on the Closing Date an opinion of
Xxxxx Xxxx & Xxxxxxxx, special counsel for the Company, dated the Closing
Date, to the effect that:
(i) assuming each of the Senior Indenture and the Subordinated
Indenture have been duly authorized, executed and delivered by the
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Company and duly executed and delivered by the respective trustee
thereto, each of the Senior Indenture and the Subordinated Indenture
is a valid and binding agreement of the Company, enforceable against
the Company in accordance with its terms (subject, as to enforcement
of remedies, to applicable bankruptcy, reorganization, insolvency,
moratorium or other similar laws affecting creditors' rights
generally from time to time in effect and to general equity
principles),
(ii) assuming the Warrant Agreement, if any, has been duly
authorized, executed and delivered by the Company and duly executed
and delivered by the Warrant Agent, the Warrant Agreement, if any, is
a valid and binding agreement of the Company, enforceable in
accordance with its terms (subject, as to enforcement of remedies, to
applicable bankruptcy, reorganization, insolvency, moratorium or
other similar laws affecting creditors' rights generally from time to
time in effect and to general equity principles);
(iii) assuming the Unit Agreement, if any, has been duly
authorized, executed and delivered by the Company and duly executed
and delivered by the Agent, the Unit Agreement, if any, is a valid
and binding agreement of the Company, enforceable in accordance with
its terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally from time to time in
effect and to general equity principles);
(iv) assuming the Offered Securities have been authorized by the
Company, the Offered Securities, when executed and authenticated in
accordance with the provisions of the relevant Senior Indenture,
Subordinated Indenture, the Warrant Agreement and the Unit Agreement,
as the case may be, and delivered to and paid for (A) by the
Underwriters in accordance with the terms of this Agreement, and (B)
upon exercise of the Warrants pursuant to the Warrant Agreement, in
the case of Warrant Securities, will be valid and binding obligations
of the Company, enforceable against the Company in accordance with
their terms (subject, as to enforcement of remedies, to applicable
bankruptcy, reorganization, insolvency, moratorium or other similar
laws affecting creditors' rights generally from time to time in
effect and to general equity principles), and will be entitled to the
benefits of the relevant Senior Indenture, Subordinated Indenture,
the Warrant Agreement and the Unit Agreement, as the case may be,
(v) each of the Senior Indenture and the Subordinated Indenture
has been duly qualified under the Trust Indenture Act,
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(vi) except as rights to indemnity and contribution under this
Agreement may be limited under applicable law, the execution and
delivery by the Company of, and the performance by the Company of its
obligations under, this Agreement, the Senior Indenture, the
Subordinated Indenture, the Offered Securities, the Warrant Agreement
and the Unit Agreement, if any, will not contravene any provision of
applicable law of the United States (except with respect to laws
relating specifically to the cable communications industry, as to
which such counsel is not called upon to express any opinion), or New
York and, except for the orders of the Commission making the
Registration Statement effective and the Senior Indenture and the
Subordinated Indenture qualified under the Trust Indenture Act (which
have been obtained) and such permits or similar authorizations
required under the securities or Blue Sky laws of certain states or
foreign jurisdictions (as to which such counsel is not called upon to
express any opinion), no consent, approval or authorization of any
governmental body or agency of the United States (except with respect
to consents, approvals and authorizations relating specifically to
the cable communications industry, as to which such counsel is not
called upon to express any opinion), or New York is required for the
performance by the Company of its obligations under this Agreement,
the Senior Indenture, the Subordinated Indenture, the Offered
Securities, the Warrant Agreement and the Unit Agreement, if any, and
(vii) the statements in the Prospectus Supplement under
"Description of [the Offered Securities]", "Certain U.S. Tax
Considerations" and "Underwriting" and in the Basic Prospectus under
"Description of [the Offered Securities]", "United States Taxation"
and "Plan of Distribution", insofar as such statements constitute a
summary of the legal matters or documents referred to therein, fairly
present the information called for with respect to such legal matters
and documents.
Such counsel shall also state that no facts have come to the attention of
such counsel that lead them to believe (1) that the Registration Statement and
the Prospectus and any supplements or amendments thereto or the documents
incorporated by reference in the Registration Statement and Prospectus (except
for financial statements and other financial or statistical data included or
incorporated by reference therein and the Form T- 1, as to which such counsel
is not called upon to express any belief) did not comply as to form in all
material respects with the Securities Act and the rules and regulations of the
Commission thereunder; (2) that the Registration Statement or any amendment
thereto (except for the financial statements and other financial or statistical
data included or incorporated by reference therein or omitted therefrom and the
Form T-1, as to which such counsel is not called upon to express any belief) at
the date of the Underwriting Agreement contained an untrue statement of a
material fact or omitted to state a material
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fact required to be stated therein or necessary to make the statements therein
not misleading; or (3) that the Prospectus, as amended or supplemented, if
applicable (except for the financial statements and other financial or
statistical data included or incorporated by reference therein or omitted
therefrom, as to which such counsel is not called upon to express any belief),
at the date of the Underwriting Agreement or at the Closing Date, contained or
contains an untrue statement of a material fact or omitted or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they are made, not misleading.
With respect to the preceding paragraph, Xxxxx Xxxx & Xxxxxxxx may state
that their opinion and belief is based upon their participation in the
preparation of the Registration Statement and Prospectus and any amendments or
supplements thereto (but not including documents incorporated therein by
reference) and review and discussion of the contents thereof (including
documents incorporated therein by reference), but is without independent check
or verification except as specified.
(d) The Manager shall have received on the Closing Date an opinion of
Dow, Xxxxxx and Xxxxxxxxx, PLLC special counsel for the Company, dated the
Closing Date, to the effect that:
(i) no approval of the Federal Communications Commission (the
"FCC") is required in connection with the issuance and sale of the
Offered Securities,
(ii) the execution and delivery of this Agreement, the Senior
Indenture, the Subordinated Indenture, the Warrant Agreement and the
Unit Agreement, if any, by the Company, the fulfillment of the terms
set forth herein and therein by the Company and the consummation of
the transactions contemplated hereby and thereby by the Company do
not violate any statute, regulation or other law of the United States
relating specifically to the cable communications industry (except as
otherwise explicitly set forth in the Prospectus) or, to the
knowledge of such counsel, any order, judgment or decree of any court
or governmental body of the United States relating specifically to
the cable communications industry and applicable to the Company or
any subsidiary, and which violation would have a material adverse
effect on the business or financial condition of the Company and its
subsidiaries, as a whole,
(iii) the statements in the Company's most recent Annual Report
on Form 10-K incorporated by reference in the Registration Statement
and Prospectus [identify sections describing cable regulatory
matters] as updated by the Company's most recent Quarterly Reports on
Form 10-Q incorporated in the Registration Statement and Prospectus
and as updated by the Prospectus, insofar as they are, or refer to,
statements of federal law
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or legal conclusions, have been reviewed by such counsel and present
in all material respects the information called for with respect to
such statements of federal law or legal conclusions, and
(iv) such counsel does not know of any proceeding pending before
the FCC to which the Company or any of its subsidiaries is a party or
involving the cable communications properties, licenses or
authorizations of the Company and its subsidiaries, or of any cable
communications law or regulation relevant thereto required to be
described in the Registration Statement or Prospectus pursuant to
Regulation S-K promulgated under the Securities Act, which is not
described as required.
(e) The Manager shall have received on the Closing Date an opinion of
Xxxxxx Xxxxxx & Xxxxxxx (a partnership including a professional
organization), counsel for the Underwriters, dated the Closing Date,
covering the matters requested by and in form and substance reasonably
satisfactory to the Manager.
(f) The Manager shall have received on the Closing Date, a letter
dated the Closing Date, in each case in form and substance satisfactory to
the Manager, from Deloitte & Touche LLP, independent public accountants,
containing statements and information of the type ordinarily included in
accountants' "comfort letters" to underwriters with respect to the
financial statements and certain financial information contained in or
incorporated by reference in the Registration Statement and the
Prospectus.
(g) The Manager shall have received on the date hereof or on the
Closing Date, as applicable, such additional documents as the Manager
shall have reasonably requested to confirm compliance with the conditions
to Closing listed herein.
5. Covenants of the Company. In further consideration of the agreements of
the Underwriters herein contained, the Company covenants as follows:
(a) To furnish to the Manager, without charge, a copy of the
Registration Statement and two signed copies of any post-effective
amendment thereto specifically relating to the Offered Securities
(including exhibits thereto and documents incorporated therein by
reference) and, during the period mentioned in paragraph (c) below, as
many copies of the Prospectus, any documents incorporated therein by
reference and any supplements and amendments thereto as the Manager may
reasonably request.
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(b) Before amending or supplementing the Registration Statement or
the Prospectus, to furnish the Manager a copy of each such proposed
amendment or supplement.
(c) If, during such period after the first date of the public
offering of the Offered Securities during which in the opinion of counsel
to the Manager the Prospectus is required by law to be delivered in
connection with sales by an Underwriter or dealer, any event shall occur
as a result of which it is necessary to amend or supplement the Prospectus
in order to make the statements therein, in the light of the circumstances
existing at the time, not misleading, forthwith to prepare and furnish, at
its expense, to the Underwriters and to the dealers (whose names and
addresses the Manager will furnish to the Company) to which Offered
Securities may have been sold by the Manager on behalf of the Underwriters
and to any other dealers on request, either amendments or supplements to
the Prospectus so that the statements in the Prospectus as so amended or
supplemented will not, in the light of the circumstances existing at the
time, be misleading.
(d) To endeavor to qualify the Offered Securities for offer and sale
under the securities or Blue Sky laws of such U.S. jurisdictions as the
Manager shall reasonably request.
(e) To make generally available to the Company's security holders as
soon as practicable an earnings statement covering the twelve month period
beginning on the first day of the first fiscal quarter commencing after
the date hereof, which shall satisfy the provisions of Section 11(a) of
the Securities Act and the rules and regulations of the Commission
thereunder (which may be accomplished by making generally available the
Company's financial statements in the manner provided for by Rule 158 of
the Securities Act).
(f) To comply with all provisions of Section 517.075, Florida
Statutes (Chapter 92-198, Laws of Florida) relating to doing business with
Cuba.
6. Indemnification and Contribution. The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls each
Underwriter within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act from and against any and all losses, claims,
damages and liabilities caused by any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement or the
Prospectus (as amended or supplemented) or any preliminary prospectus, or
caused by any omission or alleged omission to state therein a material fact
necessary to make the statements therein not misleading, except insofar as such
losses, claims, damages or liabilities are caused by any such untrue statement
or omission or alleged untrue statement or omission based upon information
furnished to the Company in writing by such Underwriter through the Manager
expressly for use therein;
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provided, however, that the foregoing indemnity agreement with respect to any
preliminary prospectus shall not inure to the benefit of any Underwriter from
whom the person asserting any such losses, claims, damages or liabilities
purchased Offered Securities, or any person controlling any such Underwriter,
if a copy of the Prospectus (as then amended or supplemented) was not sent or
given by or on behalf of such Underwriter to such person, if required by law so
to have been delivered, at or prior to the written confirmation of the sale of
the Offered Securities to such person, and if the Prospectus (as so amended or
supplemented but without reference to documents incorporated by reference
therein) would have cured the defect giving rise to such loss, claim, damage or
liability.
Each Underwriter agrees to indemnify and hold harmless the 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
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, the Prospectus, any amendment or supplement thereto, or
any preliminary prospectus.
In case any proceeding (including any governmental investigation) shall be
instituted involving any person in respect of which indemnity may be sought
pursuant to either of the two preceding paragraphs, such person (hereinafter
called the "indemnified party") shall promptly notify the person against whom
such indemnity may be sought (hereinafter called the "indemnifying party") in
writing and the indemnifying party, upon request of the indemnified party,
shall retain counsel reasonably satisfactory to the indemnified party to
represent the indemnified party and any others the indemnifying party may
designate in such proceeding and shall pay the fees and disbursements of such
counsel related to such proceeding. In any such proceeding, any indemnified
party shall have the right to retain its own counsel, but the fees and expenses
of such counsel shall be at the expense of such indemnified party unless (i)
the indemnifying party and the indemnified party shall have mutually agreed to
the retention of such counsel or (ii) the named parties to any such proceeding
(including any impleaded parties) include both the indemnifying party and the
indemnified party and representation of both parties by the same counsel would
be inappropriate due to actual or potential differing interests between them.
It is understood that the indemnifying party shall not, in connection with any
proceeding or related proceedings in the same jurisdiction, be liable for the
reasonable fees and expenses of more than one separate firm (in addition to any
local counsel) for all such indemnified parties and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Underwriters and such control persons of the
Underwriters, such firm shall be designated in writing by the Manager. In the
case of any such separate firm for the Company and such directors, officers and
controlling persons of the Company, such firm shall be designated in writing by
the Company. The indemnifying party shall not be liable for any settlement of
any
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proceeding effected without its written consent, but if settled with such
consent or if there be a final judgment for the plaintiff, the indemnifying
party agrees to indemnify, to the extent provided in the two immediately
preceding paragraphs, the indemnified party from and against any loss or
liability by reason of such settlement or judgment. No indemnifying party
shall, without the prior written consent of the indemnified party, effect any
settlement of any pending or threatened proceeding in respect of which any
indemnified party is or could have been a party and indemnity could have been
sought hereunder by such indemnified party, unless such settlement includes an
unconditional release of such indemnified party from all liability on claims
that are the subject matter of such proceeding.
If the indemnification provided for in the second or third paragraph of
this Section 6 is unavailable to an indemnified party in respect of any losses,
claims, damages or liabilities for which indemnification is provided herein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages or liabilities (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and the
Underwriters from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in
such proportion as is appropriate to reflect not only the relative benefits
referred to in clause (i) above but also the relative fault of the Company and
of the Underwriters in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Underwriters shall be deemed to be in the same respective
proportions as the net proceeds from the offering (before deducting expenses)
received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters in respect thereof. The relative fault
of the Company and the Underwriters 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 Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages and liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations set
forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such action
or claim. Notwithstanding the provisions of this Section 6, the Underwriters
shall not be required to contribute any amount in excess of the amount by which
the total price at which the Offered Securities
13
underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which the Underwriters have otherwise been
required to pay by reason of such untrue or alleged untrue statement or
omission or alleged omission. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled
to contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreement contained in this Section 6 and
the representations and warranties of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Underwriters or any person controlling the Underwriters or by or on behalf
of the Company, its officers or directors or any other person controlling the
Company and (iii) acceptance of and payment for any of the Offered Securities.
7. Termination. This Agreement shall be subject to termination in the
absolute discretion of the Manager by notice given by the Manager to the
Company, if (a) after the execution and delivery of the Underwriting Agreement
and prior to the Closing Date (i) trading generally shall have been suspended
or materially limited on or by, as the case may be, the New York Stock
Exchange, the American Stock Exchange, or the National Association of
Securities Dealers, Inc., (ii) trading of any securities of the Company shall
have been suspended on the Nasdaq National Market, (iii) a general moratorium
on commercial banking activities in New York shall have been declared by either
Federal or New York State authorities, or (iv) there shall have occurred any
outbreak or escalation of hostilities or any change in financial markets or any
calamity or crisis that, in the judgment of the Manager, is material and
adverse and (b) in the case of any of the events specified in clauses (a)(i)
through (iv), such event, singly or together with any other such event, makes
it, in the judgment of the Manager, impracticable to market the Offered
Securities on the terms and in the manner contemplated in the Prospectus.
The Company will pay and bear all costs and expenses incident to the
performance of its obligations under this Agreement, including (a) the
preparation, printing and filing of the Registration Statement (including
financial statements and exhibits), as originally filed and as amended, the
preliminary prospectuses and the Prospectus and any amendments or supplements
thereto, and the cost of furnishing copies thereto to the Underwriters, (b) the
preparation, printing and distribution of this Agreement, the Senior Indenture,
the Subordinated Indenture, the Warrant Agreement and the Unit Agreement, if
any, and Blue Sky Memorandum, (c) the delivery of the Offered Securities to the
Underwriters, (d) the reasonable fees and disbursements of the Company's
counsel and accountants, (e) the qualification of the Offered Securities under
the applicable state securities or Blue Sky laws in accordance with Section 5,
including filing fees and reasonable fees and disbursements of counsel for the
Underwriters in connection therewith and in connection with any Blue Sky survey
and any legal investment survey, (f) all fees payable to the National
Association of Securities Dealers,
14
Inc. in connection with the review, if any, of the offering of the Securities,
(g) any fees charged by rating agencies for rating the Offered Securities and
(h) the fees and expenses of the Trustee, including the fees and disbursements
of counsel for the Trustee, in connection with the Senior Indenture, the
Subordinated Indenture and the Offered Securities. Except as specifically
provided elsewhere herein, the Underwriters will pay all of their own costs and
expenses, including without limitation the fees and expenses of their counsel
and the expenses of selling presentations.
If this Agreement shall be terminated by the Underwriters because of any
failure or refusal on the part of the Company to comply with the terms or to
fulfill 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 for all out-of-pocket expenses
(including the fees and disbursements of their counsel) reasonably incurred by
the Underwriters in connection with this Agreement or the offering contemplated
hereunder. This provision shall survive the termination or cancellation of this
Agreement.
8. Defaulting Underwriters. If on the Closing Date any one or more of the
Underwriters shall fail or refuse to purchase Offered Securities that it has or
they have agreed to purchase on such date, and the aggregate amount of Offered
Securities which such defaulting Underwriter or Underwriters agreed but failed
or refused to purchase is not more than one-tenth of the aggregate amount of
the Offered Securities to be purchased on such date, the other Underwriters
shall be obligated severally in the proportions that the amount of Offered
Securities set forth opposite their respective names bears to the aggregate
amount of Offered Securities set forth opposite the names of all such
non-defaulting Underwriters, or in such other proportions as the Manager may
specify, to purchase the Offered Securities which such defaulting Underwriter
or Underwriters agreed but failed or refused to purchase on such date; provided
that in no event shall the amount of Offered Securities that any Underwriter
has agreed to purchase pursuant to this Agreement be increased pursuant to this
Section 8 by an amount in excess of one-ninth of such amount of Offered
Securities without the written consent of such Underwriter. If on the Closing
Date any Underwriter or Underwriters shall fail or refuse to purchase Offered
Securities and the aggregate amount of Offered Securities with respect to which
such default occurs is more than one-tenth of the aggregate amount of Offered
Securities to be purchased on such date, and arrangements satisfactory to the
Manager and the Company for the purchase of such Offered 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.
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9. Counterparts. The Underwriting Agreement may be signed in any number of
counterparts, each of which shall be an original, with the same effect as if
the signatures thereto and hereto were upon the same instrument.
10. Applicable Law. This Agreement shall be governed by and construed in
accordance with the internal laws of the State of New York.
11. Headings. The headings of the sections of this Agreement have been
inserted for convenience of reference only and shall not be deemed a part of
this Agreement.
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