Charter Communications, Inc.
Class A Common Stock, Par Value $.001 Per Share
Underwriting Agreement
----------------------
May 23, 2001
Xxxxxx Xxxxxxx & Co. Incorporated,
Xxxxxxx, Sachs & Co.,
Banc of America Securities LLC,
Bear, Xxxxxxx & Co. Inc.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxxx Xxxxx Barney Inc.,
X.X. Xxxxxx Securities Inc.
Credit Lyonnais Securities (USA) Inc.,
Fleet Securities, Inc.,
BMO Xxxxxxx Xxxxx,
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC,
As representatives of the several Underwriters
named in Schedule I hereto (the "Representatives"),
c/o Morgan Xxxxxxx & Co. Incorporated
0000 Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxxx, Sachs & Co.
00 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
Charter Communications, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein, to issue and sell
to the Underwriters named in Schedule I hereto (the "Underwriters") an aggregate
of 52,389,000 shares (the "Firm Shares") and, at the election of the
Underwriters, up to 7,858,350 additional shares (the "Optional Shares") of Class
A Common Stock, par value $.001 per share ("Stock"), of the Company (the Firm
Shares and the Optional Shares that the Underwriters elect to purchase pursuant
to Section 2 hereof being collectively called the "Shares").
It is understood and agreed that Xxxxxx Xxxxxxx & Co. Incorporated and
Xxxxxxx, Sachs & Co. are joint book-runners and joint lead managers for the
offering of the Shares and any determinations or other actions to be made under
this Agreement by
you or the Representatives shall require the concurrence of both Xxxxxx Xxxxxxx
& Co. Incorporated and Xxxxxxx, Sachs & Co.
1. The Company and Charter Communications Holding Company, LLC, a
Delaware limited liability company ("Holding"), jointly and severally, represent
and warrant to, and agree with, each of the Underwriters that:
(a) A registration statement on Form S-3 (File No. 333-56850) and
pre-effective amendment no. 1 thereto (together, the "Initial Registration
Statement") in respect of the Shares and the offering thereof from time to
time in accordance with Rule 415 of the rules and regulations of the
Securities and Exchange Commission (the "Commission") under the Securities
Act of 1933, as amended (the "Act"), has been filed with the Commission;
the Initial Registration Statement and any post-effective amendment thereto
filed with the Commission on or before the date of this Agreement, each in
the form heretofore delivered to you, and, excluding exhibits thereto but
including all documents incorporated by reference in the prospectus
contained therein, delivered to you for each of the other Underwriters,
have been declared effective by the Commission in such form; no other
document with respect to the Initial Registration Statement or documents
incorporated by reference therein has heretofore been filed with the
Commission (other than prospectuses filed pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, each in the form
heretofore delivered to you); and no stop order suspending the
effectiveness of the Initial Registration Statement or any post-effective
amendment thereto has been issued and no proceeding for that purpose has
been initiated or threatened by the Commission (any preliminary prospectus
included in the Initial Registration Statement, filed with the Commission
pursuant to Rule 424(a) of the rules and regulations of the Commission
under the Act or that omitted information to be included upon pricing in a
form of prospectus filed with the Commission pursuant to Rule 424(b) of the
rules and regulations of the Commission under the Act, is hereinafter
called a "Preliminary Prospectus"; the various parts of the Initial
Registration Statement, including all exhibits thereto and the documents
incorporated by reference in the prospectus contained in the Initial
Registration Statement at the time such part of the Initial Registration
Statement became effective, each as amended at the time such part of the
Initial Registration Statement became effective and as amended by any
post-effective amendment thereto at the time such post-effective amendment
became effective, are hereinafter collectively called the "Registration
Statement"; the final prospectus supplement and the final prospectus
relating to the Shares, in the form first filed with the Commission
pursuant to Rule 424(b) under the Act, are hereinafter collectively called
the "Prospectus"; any reference herein to any Preliminary Prospectus or the
Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the
Act, as of the date of such Preliminary Prospectus or Prospectus, as the
case may be; any reference to any amendment or supplement to any
Preliminary Prospectus or the Prospectus shall be deemed to refer to and
include any documents filed after the date of such Preliminary Prospectus
or Prospectus, as the case may be, under the Securities Exchange Act of
1934, as amended (the "Exchange Act"), and incorporated by reference in
such Preliminary Prospectus or
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Prospectus, as the case may be; any reference to any amendment to the
Registration Statement shall be deemed to refer to and include any annual
report of the Company filed pursuant to Section 13(a) or 15(d) of the
Exchange Act after the effective date of the Initial Registration Statement
that is incorporated by reference in the Registration Statement; and any
reference to the Prospectus as amended or supplemented shall be deemed to
refer to the Prospectus as amended or supplemented relating to the Shares
in the form in which it is filed with the Commission pursuant to Rule
424(b) under the Act in accordance with Section 5(a) hereof, including any
documents incorporated by reference therein as of the date of such filing).
(b) No order preventing or suspending the use of any Preliminary
Prospectus or Prospectus has been issued by the Commission, and each
Preliminary Prospectus and Prospectus, at the time of filing thereof,
conformed in all material respects to the requirements of the Act and the
rules and regulations of the Commission thereunder and did not contain an
untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in the light of the circumstances under which they were made, not
misleading; provided, however, that this representation and warranty shall
not apply to any statements or omissions made in reliance upon and in
conformity with information furnished in writing to the Company by an
Underwriter through Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs &
Co. expressly for use therein;
(c) The documents incorporated by reference in any Preliminary
Prospectus and Prospectus, when they became effective or were filed with
the Commission, as the case may be, conformed in all material respects to
the requirements of the Act or the Exchange Act, as applicable, and the
rules and regulations of the Commission thereunder, and, when such
documents became effective or were filed with the Commission, as the case
may be, none of such documents 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; and any further
documents so filed and incorporated by reference in the Prospectus or any
further amendment or supplement thereto, when such documents become
effective or are filed with the Commission, as the case may be, will
conform in all material respects to the requirements of the Act or the
Exchange Act, as applicable, and the rules and regulations of the
Commission thereunder and will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading;
(d) As of the applicable effective date as to the Registration
Statement and any amendment thereto and as of the applicable filing date as
to the Prospectus and any amendment or supplement thereto, the Registration
Statement and the Prospectus conform, and any further amendments or
supplements to the Registration Statement or the Prospectus will conform,
in all material respects to the requirements of the Act and the rules and
regulations of the Commission thereunder and do not and will not, as of the
applicable effective date as to the Registration Statement and any
amendment thereto and as of the applicable filing date as to the Prospectus
and any amendment or supplement thereto, contain an untrue statement of a
material fact or
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omit to state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided, however, that this
representation and warranty shall not apply to any statements or omissions
made in reliance upon and in conformity with information furnished in
writing to the Company by an Underwriter through Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxxxx, Sachs & Co. expressly for use therein;
(e) Neither the Company nor any of its subsidiaries has sustained since
the date of the latest audited financial statements included or
incorporated by reference 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 Registration Statement and the Prospectus,
there has not been any change in the capital stock, 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 and its subsidiaries, otherwise than
as set forth or contemplated in the Prospectus;
(f) Each of the Company and its subsidiaries has good and marketable
title in fee simple to all real property and good and valid title to all
personal property owned by it reflected as owned in the financial
statements or elsewhere in the Prospectus, in each case free and clear of
all liens, encumbrances and defects except such as are described in the
Prospectus or such as do not materially affect the value of such property
and do not interfere with the use made and proposed to be made of such
property by the Company and its subsidiaries; and any real property and
buildings held under lease by the Company and its subsidiaries are held by
them under valid, subsisting and enforceable leases with such exceptions as
are not material and do not interfere with the use made and proposed to be
made of such property and buildings by the Company and its subsidiaries;
(g) The Company has been duly formed and is validly existing as a
corporation in good standing under the laws of the State of Delaware;
Holding has been duly formed and is validly existing as a limited liability
company in good standing under the laws of the State of Delaware; each of
the Company and Holding has power and authority (corporate and other) 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 or limited liability
company, as the case may be, 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 and in the aggregate, have a material adverse
effect on the current or future financial position, stockholders' or
members' equity or results of operations of the Company and its
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subsidiaries taken as a whole (a "Material Adverse Effect"); each
"significant subsidiary" (as such term is defined in Rule 1-02 of
Regulation S-X) of the Company (each, a "Significant Subsidiary") has been
duly incorporated or formed, as the case may be, and is validly existing as
a corporation or limited liability company, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or formation;
(h) The Company has an authorized capitalization as set forth in the
Prospectus, and all of the issued shares of capital stock of the Company
have been duly and validly authorized and issued, are fully paid and
non-assessable, and conform to the descriptions thereof contained in the
Prospectus; the Company's stockholders have no preemptive rights with
respect to the Stock; Holding has an authorized capitalization as set forth
in the Prospectus, and all of the issued and outstanding Membership Units
have been duly and validly authorized and issued, are fully paid and
non-assessable, are owned directly by the Company, Charter Investment,
Inc., Vulcan Cable III Inc. and by those other persons and entities as
described in the Prospectus, and, in the case of the Company, are owned
free and clear of all liens, encumbrances, equities or claims, and conform
to the description thereof contained in the Prospectus; and all of the
outstanding capital stock or limited liability company interests, as the
case may be, of each Significant Subsidiary of the Company have been duly
and validly authorized and issued, are fully paid and non-assessable 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;
(i) The Shares to be issued and sold by the Company to the Underwriters
hereunder have been duly and validly authorized and, when issued and
delivered against payment therefor as provided herein, will be duly and
validly issued, fully paid and non-assessable and will conform to the
description of the Stock contained in the Prospectus;
(j) The issue and sale of the Shares hereunder and the compliance by
the Company and Holding, as the case may be, with all of the provisions of
this Agreement and the consummation of the transactions herein 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 its subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or assets of the
Company or any of its 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,
any of its subsidiaries or any of their respective properties, including,
without limitation, the Communications Act of 1934, as amended, the Cable
Communications Policy Act of 1984, as amended, the Cable Television
Consumer Protection and Competition Act of 1992, as amended, and the
Telecommunications Act of 1996 (collectively, the "Cable Acts") or any
order, rule or regulation of the Federal Communications Commission (the
"FCC"), except where
5
such conflict, breach, violation or default would not, individually and in
the aggregate, have a Material Adverse Effect and would not have the effect
of preventing the Company or Holding from performing any of their
respective obligations under this Agreement; nor will such action result in
any violation of the restated certificate of incorporation or bylaws of the
Company or the certificate of formation or amended and restated limited
liability company agreement of Holding; and no consent, approval,
authorization, order, registration or qualification of or with any such
court or governmental agency or body is required, including, without
limitation, under the Cable Acts or any order, rule or regulation of the
FCC, for the issue and sale of the Shares or the consummation by the
Company or Holding, as the case may be, of the transactions contemplated by
this Agreement, except such consents, approvals, authorizations,
registrations or qualifications as have been made or except as may be
required under state or foreign securities or Blue Sky laws in connection
with the purchase and distribution of the Shares by the Underwriters and
except such as may be required by the National Association of Securities
Dealers, Inc. ("NASD");
(k) Neither the Company nor any of its subsidiaries is (i) in violation
of its certificate of incorporation, bylaws, certificate of formation,
limited liability company 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 its
subsidiaries or any of their properties or assets, including, without
limitation, the Cable Acts or any order, rule or regulation of the FCC,
except, in the case of clauses (ii) and (iii), such as would not,
individually and in the aggregate, have a Material Adverse Effect;
(l) The provisions of the Company's restated certificate of
incorporation and bylaws, including, without limitation, the provisions
thereof relating to the Stock and the Company's Class B Common Stock, par
value .001 per share (the "Class B Stock") (A) are lawful and permitted
under the Delaware General Corporation Law, do not violate any Delaware
statute or rule or regulation of any Delaware governmental agency or body
having jurisdiction over the Company or Holding and, subject to principles
of equity, a Delaware court properly presented with the matter would so
find and (B) do not violate any order of any Delaware court having
jurisdiction over the Company or Holding. Holding's certificate of
formation and amended and restated limited liability company agreement do
not violate the Delaware Limited Liability Company Act, Holding's amended
and restated limited liability company agreement is enforceable against the
parties thereto in accordance with its terms, and Holding's certificate of
formation and amended and restated limited liability company agreement do
not violate (i) any Delaware statute, (ii) any rule or regulation of any
Delaware governmental agency or body having jurisdiction
6
over the Company or Holding or (iii) any order of any Delaware court having
jurisdiction over the Company or Holding;
(m) The statements set forth in the Prospectus under the captions
"Risks Factors -- Regulatory and Legislative Matters," "Business -- Pending
AT&T Transactions," "Regulation and Legislation," "Management," "Certain
Relationships and Related Transactions," "Description of Certain
Indebtedness," "Description of Capital Stock and Membership Units," "Shares
Eligible For Future Sale" and "Certain United States Tax Considerations for
Non-United States Holders of Class A Common Stock," insofar as they purport
to describe the provisions of the laws, documents and arrangements referred
to therein, are accurate in all material respects;
(n) Other than as set forth in the Prospectus, there are no legal or
governmental proceedings (including, without limitation, by the FCC or any
franchising authority) pending to which the Company or any of its
subsidiaries is a party or of which any property of the Company or any of
its subsidiaries is the subject which, if determined adversely to the
Company or any of its subsidiaries, would, individually or in the
aggregate, have a Material Adverse Effect; and, to the best knowledge of
the Company and Holding and except as disclosed in the Prospectus, no such
proceedings are threatened or contemplated by governmental authorities or
threatened by others;
(o) Each of the Company and its subsidiaries carries insurance
(including self-insurance) in such amounts and covering such risks as in
the reasonable determination of the Company and Holding is adequate for the
conduct of its business and the value of its properties;
(p) 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 and Holding, threatened which would, individually or in the
aggregate, have a Material Adverse Effect;
(q) Neither the Company nor Holding is and, after giving effect to the
offering and sale of the Shares, neither of them will be an "investment
company" or an entity "controlled" by an "investment company," as such
terms are defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act");
(r) The audited consolidated financial statements (including the notes
thereto) included or incorporated by reference 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; the supporting schedules
included or incorporated by reference in the Registration Statement present
fairly in accordance with GAAP the information required to be stated
therein; and the summary and selected financial data in the Prospectus
present fairly in all material
7
respects the information shown therein and have been prepared and compiled
on a basis consistent with the audited financial statements included
therein;
(s) The pro forma financial statements (including the notes thereto)
and the other pro forma financial information included or incorporated by
reference in the Prospectus (i) comply as to form in all material respects
with the applicable requirements of Regulation S-X for Form S-3 promulgated
under the Exchange Act, and (ii) have been properly computed on the bases
described therein; the assumptions used in the preparation of the pro forma
financial data and other pro forma financial information included or
incorporated by reference in the Prospectus are reasonable and the
adjustments used therein are appropriate to give effect to the transactions
or circumstances referred to therein;
(t) Each of the firms who have certified financial statements included
or incorporated by reference in the Prospectus are independent public
accountants as required by the Act and the rules and regulations of the
Commission thereunder, based upon representations by such firms to the
Company;
(u) The Company and its 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 and in
the aggregate, have a Material Adverse Effect; and neither the Company nor
any of its 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;
(v) Except as described in the Prospectus, the Company and its
subsidiaries have obtained all consents, approvals, orders, certificates,
licenses, permits, franchises and other authorizations of and from, and
have made all declarations and filings with, all governmental and
regulatory authorities (including, without limitation, the FCC), all
self-regulatory organizations and all courts and other tribunals legally
necessary to own, lease, license and use their respective properties and
assets and to conduct their respective businesses in the manner described
in the Prospectus, except to the extent that the failure to so obtain or
file would not, individually and in the aggregate, have a Material Adverse
Effect;
(w) Each of the franchises held by the Company and its subsidiaries
that is material to the Company and its subsidiaries, taken as a whole, is
in full force and effect, with no material restrictions or qualifications
other than those with which the Company and/or its subsidiaries are in
compliance in all material respects; and 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
franchise, assuming the filing of timely renewal applications and the
timely payment
8
of all applicable filing and regulatory fees to the applicable franchising
authority, or which might result, individually or in the aggregate, in any
other material impairment of the rights of the Company and its subsidiaries
in such franchises. Except as described in the Prospectus, the Company has
no reason to believe that any such franchise will not be renewed in the
ordinary course;
(x) The Company and its subsidiaries (i) are in compliance with any and
all applicable foreign, federal, state and local laws and regulations
relating to the protection of human health and safety, the environment or
hazardous or toxic substances or wastes, pollutants or contaminants
("Environmental Laws"), (ii) have received all permits, licenses or other
approvals required of them under applicable Environmental Laws to conduct
their respective businesses and (iii) are in compliance with all terms and
conditions of any such permit, license or approval, except where such
noncompliance with Environmental Laws, failure to receive required permits,
licenses or other approvals or failure to comply with the terms and
conditions of such permits, licenses or approvals would not, individually
and in the aggregate, have a Material Adverse Effect;
(y) The Company and its 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 and 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 that
could reasonably be expected to result, individually or in the aggregate,
in a Material Adverse Effect;
(z) Except as described in the Prospectus, there are no contracts,
agreements or understandings between the Company, Holding or any of their
affiliates and any person granting such person the right to require the
Company or Holding to file a registration statement under the Act with
respect to any securities of the Company or Holding;
(aa) Except as described in the Prospectus, there are no outstanding
options, warrants or other rights calling for the issuance of, and no
commitments, plans or arrangements to issue, any securities of the Company
or Holding or any security convertible into or exchangeable for securities
of the Company or Holding;
(bb) There are no contracts, other documents or other agreements
required to be described in the Registration Statement or to be filed as
exhibits to the Registration Statement by the Act or by the rules and
regulations thereunder which have not been described or filed or
incorporated by reference therein as required; the contracts so described
in the Prospectus are in full force and effect on the date hereof; and
neither the Company nor any of its subsidiaries and, to the best of the
Company's knowledge, any other party is in breach of or default under any
of such contracts, except for those breaches or defaults that would not,
individually and in the aggregate, result in a Material Adverse Effect;
9
(cc) The Company and its subsidiaries maintain a system of internal
accounting controls sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with management's general or
specific authorization; (ii) transactions are recorded as necessary to
permit preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for assets;
(iii) access to assets is permitted only in accordance with management's
general or specific authorization; and (iv) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and
appropriate action is taken with respect to any differences; and
(dd) Prior to the date hereof, none of the Company, any of its
subsidiaries or, to the best of the Company's knowledge, any of its other
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
or any of its subsidiaries in connection with the offering of the Shares.
2. Subject to the terms and conditions herein set forth, (a) the
Company agrees to issue and sell to each of the Underwriters, and each of the
Underwriters agrees, severally and not jointly, to purchase from the Company, at
a purchase price per share of $20.265, the number of Firm Shares set forth
opposite the name of such Underwriter in Schedule I hereto and (b) in the event
and to the extent that the Underwriters shall exercise the election to purchase
Optional Shares as provided below, the Company agrees to issue and sell to each
of the Underwriters, and each of the Underwriters agrees, severally and not
jointly, to purchase from the Company, at the same purchase price per share set
forth in clause (a) of this Section 2, that portion of the number of Optional
Shares as to which such election shall have been exercised (to be adjusted by
you so as to eliminate fractional shares) determined by multiplying such number
of Optional Shares by a fraction, the numerator of which is the maximum number
of Optional Shares which such Underwriter is entitled to purchase as set forth
opposite the name of such Underwriter in Schedule I hereto and the denominator
of which is the maximum number of Optional Shares that all of the Underwriters
are entitled to purchase hereunder.
The Company hereby grants to the Underwriters the right to purchase at
their election up to 7,858,350 Optional Shares, at the purchase price per share
set forth in clause (a) of the first paragraph of this Section 2, for the sole
purpose of covering sales of securities in excess of the number of the Firm
Shares. Any such election to purchase Optional Shares may be exercised only by
written notice from both of Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs
& Co. to the Company, given within a period of 30 calendar days after the date
of this Agreement, setting forth the aggregate number of Optional Shares to be
purchased and the date on which such Optional Shares are to be delivered, as
determined by you but in no event earlier than the First Time of Delivery (as
defined in Section 4 hereof) or, unless you and the Company otherwise agree in
writing, earlier than two or later than ten business days after the date of such
notice.
3. Upon the authorization by you of the release of the Firm Shares, the
several Underwriters propose to offer the Firm Shares for sale upon the terms
and conditions set forth in the Prospectus.
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4. (a) The Shares to be purchased by each Underwriter hereunder, in
definitive form, and in such authorized denominations and registered in such
names as Xxxxxxx, Xxxxx & Co. may request upon at least forty-eight hours' prior
notice to the Company, shall be delivered by or on behalf of the Company to
Xxxxxxx, Sachs & Co., through the facilities of The Depository Trust Company
("DTC"), for the account of such Underwriter, against payment by or on behalf of
such Underwriter of the purchase price therefor by wire transfer of Federal
(same-day) funds to the account specified by the Company to Xxxxxxx, Xxxxx & Co.
at least forty-eight hours in advance. The Company will cause the certificates
representing the Shares to be made available for checking and packaging at least
twenty-four hours prior to the Time of Delivery (as defined below) with respect
thereto at the office of DTC or its designated custodian (the "Designated
Office"). The time and date of such delivery and payment shall be, with respect
to the Firm Shares, 9:30 a.m., New York City time, on May 30, 2001 or such other
time and date as Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs & Co. and
the Company may agree upon in writing, and, with respect to the Optional Shares,
9:30 a.m., New York City time, on the date specified by Xxxxxx Xxxxxxx & Co.
Incorporated and Xxxxxxx, Sachs & Co. in the written notice given by Xxxxxx
Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs & Co. of the Underwriters'
election to purchase such Optional Shares, or such other time and date as Xxxxxx
Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs & Co. and the Company may agree
upon in writing. Such time and date for delivery of the Firm Shares is herein
called the "First Time of Delivery", such time and date for delivery of the
Optional Shares, if not the First Time of Delivery, is herein called the "Second
Time of Delivery", and each such time and date for delivery is herein called a
"Time of Delivery."
(b) The documents to be delivered at each Time of Delivery by or on
behalf of the parties hereto pursuant to Section 7 hereof, including the cross
receipt for the Shares and any additional documents requested by the
Underwriters pursuant to Section 7(m) hereof, will be delivered at such time and
date at the offices of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, 000 Xxxx Xxxxxx,
Xxx Xxxx, Xxx Xxxx 00000 or such other location as the parties mutually agree
(the "Closing Location"), and the Shares will be delivered at the Designated
Office, all at such Time of Delivery. A meeting will be held at the Closing
Location at 2:00 p.m., New York City time, on the New York Business Day next
preceding such Time of Delivery, at which meeting the final drafts of the
documents to be delivered pursuant to the preceding sentence will be available
for review by the parties hereto. For the purposes of this Section 4, "New York
Business Day" shall mean each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which banking institutions in New York are generally
authorized or obligated by law or executive order to close.
5. The Company agrees with each of the Underwriters:
(a) To prepare the Prospectus in a form approved by you and to file
such Prospectus pursuant to Rule 424(b) under the Act not later than the
Commission's close of business on the second business day following the
execution and delivery of this Agreement; to make no further amendment or
any supplement to the Registration Statement or Prospectus prior to the
last Time of Delivery which shall be disapproved
11
by you promptly after reasonable notice thereof; to advise you, promptly
after it receives notice thereof, of the time when any amendment to the
Registration Statement has been filed or becomes effective or any
supplement to the Prospectus or any amended Prospectus has been filed and
to furnish you with copies thereof; to file promptly all reports and any
definitive proxy or information statements required to be filed by the
Company with the Commission pursuant to Section 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of the Prospectus and for so
long as the delivery of a prospectus is required in connection with the
offering or sale of the Shares, to advise you, promptly after it receives
notice thereof, of the issuance by the Commission of any stop order or of
any order preventing or suspending the use of any Prospectus, of the
suspension of the qualification of the Shares for offering or sale in any
jurisdiction, of the initiation or threatening of any proceeding for any
such purpose, or of any request by the Commission for the amending or
supplementing of the Registration Statement or Prospectus or for additional
information; and, in the event of the issuance of any stop order or of any
order preventing or suspending the use of any Prospectus or suspending any
such qualification, to promptly use its best efforts to obtain the
withdrawal of such order;
(b) Promptly from time to time to take such action as you may
reasonably request to qualify the Shares for offering and sale under the
securities laws of such jurisdictions as you may request and to comply with
such laws so as to permit the continuance of sales and dealings therein in
such jurisdictions for as long as may be necessary to complete the
distribution of the Shares, provided that in connection therewith the
Company shall not be required to qualify as a foreign corporation or to
file a general consent to service of process in any jurisdiction;
(c) On the New York Business Day next succeeding the date of this
Agreement or as soon as practicable thereafter and from time to time, to
furnish the Underwriters with written and electronic copies of the
Prospectus in New York City in such quantities as you may reasonably
request, and, if the delivery of a prospectus is required at any time prior
to the expiration of nine months after the time of issue of the Prospectus
in connection with the offering or sale of the Shares and if at such time
any event shall have occurred as a result of which the Prospectus as then
amended or supplemented would include an untrue statement of a material
fact or omit to state any material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made when such Prospectus is delivered, not misleading, or, if for any
other reason it shall be necessary during such same period to amend or
supplement the Prospectus or to file under the Exchange Act any document
incorporated by reference in the Prospectus in order to comply with the Act
or the Exchange Act, to notify you and upon your request to file such
document and to prepare and furnish without charge to each Underwriter and
to any dealer in securities as many written and electronic copies as you
may from time to time reasonably request of an amended Prospectus or a
supplement to the Prospectus which will correct such statement or omission
or effect such compliance, and in case any Underwriter is required to
deliver a prospectus in connection with sales of any of the Shares at any
time nine months or more after the time of issue of the Prospectus, upon
your request but at the expense of such Underwriter, to prepare and deliver
to such
12
Underwriter as many written and electronic copies as you may request of an
amended or supplemented Prospectus complying with Section 10(a)(3) of the
Act;
(d) To make generally available to its securityholders as soon as
practicable, but in any event not later than eighteen months after the
effective date of the Registration Statement (as defined in Rule 158(c)
under the Act), an earnings statement of the Company and its subsidiaries
(which need not be audited) complying with Section 11(a) of the Act and the
rules and regulations of the Commission thereunder (including, at the
option of the Company, Rule 158);
(e) During the period beginning from the date hereof and continuing
until the date 90 days after the date of this Agreement, not to offer,
sell, contract to sell or otherwise dispose of, except as provided
hereunder, any securities of the Company that are substantially similar to
the Shares, including but not limited to any securities that are
convertible into or exchangeable for, or that represent the right to
receive, Stock or any such substantially similar securities (other than (i)
pursuant to employee option plans existing on the date of this Agreement
(or subsequently adopted by the Company's board of directors), (ii) upon
the conversion or exchange of convertible or exchangeable securities
outstanding as of the date of this Agreement or (iii) shares of Stock
issued by the Company as consideration for acquisitions of businesses
occurring after the date of this Agreement as long as the recipients of
such shares execute and deliver prior to the closing of any such
acquisition a lock-up agreement substantially to the effect of the lock-up
agreements being delivered pursuant to Section 7(k) hereof), without the
prior written consent of Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx,
Sachs & Co.; provided that this paragraph (e) shall not restrict the
Company's participation (other than as a seller of securities) in
connection with sales of securities under registration statements that (x)
are effective on the date of this Agreement or (y) the Company is required
to file pursuant to registration rights agreements (other than with any
person or entity named in Schedule II hereto) outstanding on the date of
this Agreement;
(f) Not to be or become, at any time prior to the expiration of two
years after the Time of Delivery, an open-end investment company, unit
investment trust, closed-end investment company or face-amount certificate
company that is or is required to be registered under Section 8 of the
Investment Company Act;
(g) To furnish to its stockholders as soon as practicable after the end
of each fiscal year an annual report (including a balance sheet and
statements of income, stockholders' and members' equity and cash flows of
the Company and its consolidated subsidiaries certified by independent
public accountants) and, as soon as practicable after the end of each of
the first three quarters of each fiscal year (beginning with the fiscal
quarter ending after the effective date of the Registration Statement), to
make available to its stockholders consolidated summary financial
information of the Company and its subsidiaries for such quarter in
reasonable detail;
(h) During a period of three years from the effective date of the
Registration Statement, to furnish to you copies of all reports or other
communications (financial
13
or other) furnished to stockholders of the Company; and to deliver to you
as soon as they are available, copies of any reports and financial
statements furnished to or filed with the Commission or any national
securities exchange on which any class of securities of the Company is
listed;
(i) To use the net proceeds received from the sale of the Shares
pursuant to this Agreement in the manner specified in the Prospectus under
the caption "Use of Proceeds"; and
(j) To use its best efforts to have the Shares approved for quotation
on the Nasdaq National Market ("Nasdaq").
6. The Company and Holding, jointly and severally, covenant and agree
with the several Underwriters that the Company and Holding, jointly and
severally, will pay or cause to be paid the following: (i) the fees,
disbursements and expenses of the Company's and Holding's counsel and
accountants in connection with the registration of the Shares under the Act and
all other expenses in connection with the preparation, printing and filing of
the Registration Statement, any Preliminary Prospectus and the Prospectus and
amendments and supplements thereto and the mailing and delivering of copies
thereof to the Underwriters and dealers; (ii) the cost of printing or producing
any Agreement among Underwriters, this Agreement, the Blue Sky Memorandum,
closing documents (including compilations thereof) and any other documents in
connection with the offering, purchase, sale and delivery of the Shares; (iii)
all expenses in connection with the qualification of the Shares for offering and
sale under state securities laws as provided in Section 5(b) hereof, including
the fees and disbursements of counsel for the Underwriters in connection with
such qualification and in connection with the Blue Sky survey; (iv) all fees and
expenses in connection with listing the Shares on Nasdaq; (v) the filing fees
incident to, and the fees and disbursements of counsel for the Underwriters in
connection with, any required review by the NASD of the terms of the sale of the
Shares; (vi) the cost of preparing stock certificates; (vii) the cost and
charges of any transfer agent or registrar; and (viii) all other costs and
expenses incident to the performance of the Company's and Holding's obligations
hereunder which are not otherwise specifically provided for in this Section. It
is understood, however, that, except as provided in this Section, and Sections 8
and 11 hereof, the Underwriters will pay all of their own costs and expenses,
including the fees of their counsel, stock transfer taxes on resale of any of
the Shares by them, and any advertising expenses connected with any offers they
may make.
7. The obligations of the Underwriters hereunder, as to the Shares to
be delivered at each Time of Delivery, shall be subject, in their discretion, to
the condition that all representations and warranties and other statements of
the Company and Holding herein are, at and as of such Time of Delivery, true and
correct, the condition that the Company and Holding shall have performed all of
their obligations hereunder theretofore to be performed, and the following
additional conditions:
(a) The Prospectus shall have been filed with the Commission pursuant
to Rule 424(b) within the applicable time period prescribed for such filing
by the rules
14
and regulations under the Act and in accordance with Section 5(a) hereof;
no stop order suspending the effectiveness of the Registration Statement or
any part thereof shall have been issued and no proceeding for that purpose
shall have been initiated or threatened by the Commission; and all requests
for additional information on the part of the Commission shall have been
complied with to your reasonable satisfaction;
(b) Debevoise & Xxxxxxxx, counsel for the Underwriters, shall have
furnished to you such opinion, dated such Time of Delivery, with respect to
the matters covered in paragraphs (i), (ii), (v), (viii) (as to the Stock
and the Membership Units), (x) and the last paragraph of subsection (c)
below as well as such other related matters as you may reasonably request;
and such counsel shall have received such papers and information as they
may reasonably request to enable them to pass upon such matters;
(c) Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, counsel for the Company and
Holding, shall have furnished to you their written opinion, dated such Time
of Delivery, in form and substance satisfactory to you, to the effect that:
(i) The Company has been duly incorporated and is validly
existing as a corporation in good standing under the laws of the State
of Delaware; Holding has been duly formed and is validly existing as a
limited liability company in good standing under the laws of the State
of Delaware; each of the Company and Holding has the power and
authority (corporate or other) to own or lease its properties and
conduct its business as described in the Prospectus and to execute,
deliver and perform its obligations under this Agreement;
(ii) The Company has an authorized capitalization as set forth in
the Prospectus; the Shares, when issued and delivered against payment
therefor as contemplated by this Agreement, will be duly and validly
authorized and issued, fully paid and non-assessable; and the Stock
conforms in all material respects to the description thereof contained
in the Prospectus under the caption "Description of Capital Stock and
Membership Units";
(iii) Holding has an authorized capitalization as set forth in
the Prospectus; all of the Membership Units to be issued and delivered
as contemplated by the "Use of Proceeds" section of the Prospectus,
when issued and delivered against payment therefor as contemplated by
the Prospectus, will be duly and validly authorized and issued; fully
paid and non-assessable; and the Membership Units conform in all
material respects to the description thereof contained in the
Prospectus under the caption "Description of Capital Stock and
Membership Units";
(iv) 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 its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which are likely to have, individually or
in the aggregate, a Material Adverse Effect; and, to the best of
15
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;
(v) This Agreement has been duly authorized, executed and
delivered by each of the Company and Holding;
(vi) The issue and sale of the Shares being delivered at such
Time of Delivery by the Company and the compliance by the Company and
Holding with all of the provisions of this Agreement and the
consummation of the transactions herein contemplated will not, to the
best of such counsel's knowledge, result in a material 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, permit or other agreement or instruments specifically
identified to such counsel by the Company as material to the Company on
a schedule, nor will any such action result in any violation of the
provisions of the restated certificate of incorporation or by-laws of
the Company or the certificate of formation or amended and restated
limited liability company agreement of Holding, or any Federal or New
York State statute or any order, rule or regulation of any Federal or
New York State court or governmental agency or body having jurisdiction
over the Company or its subsidiaries or any of their properties;
(vii) No consent, approval, authorization, order, registration or
qualification of or with any such court or governmental agency or body
referred to in paragraph (vi) is required for the issue and sale of the
Shares or the consummation by the Company and Holding of the
transactions contemplated by this Agreement, except the registration
under the Act of the Shares and such consents, approvals,
authorizations, registrations or qualifications as have been obtained
or may be required under state or foreign securities or Blue Sky laws
in connection with the purchase and distribution of the Shares by the
Underwriters and except such as may be requested by the NASD;
(viii) The statements set forth in the Prospectus under the
captions "Description of Certain Indebtedness," "Description of Capital
Stock and Membership Units," "Shares Eligible For Future Sale,"
"Certain United States Tax Considerations for Non-United States Holders
of Class A Common Stock," and "Indemnification of Directors and
Officers," insofar as they purport to describe the provisions of the
laws, documents and arrangements referred to therein, fairly summarize
such laws and documents in all material respects;
(ix) Neither the Company nor Holding is an "investment company"
or an entity "controlled" by an "investment company," as such terms are
defined in the Investment Company Act;
(x) The Registration Statement and the Prospectus and any further
amendments and supplements thereto made by the Company prior to such
Time of Delivery (other than the financial statements and related notes
and schedules therein, as to which such counsel need express no
opinion) comply as to form in
16
all material respects with the requirements of the Act and the rules
and regulations thereunder, although such counsel does not assume any
responsibility for the accuracy, completeness or fairness of the
statements contained in the Registration Statement or the Prospectus,
except for those referred to in the opinion; and
(xi) The documents incorporated by reference in the Prospectus or
any further amendment or supplement thereto made by the Company prior
to such Time of Delivery (other than the financial statements and
related notes and schedules therein, as to which such counsel need
express no opinion), when they became effective or were filed with the
Commission, as the case may be, complied as to form in all material
respects with the requirements of the Act or the Exchange Act, as
applicable, and the rules and regulations of the Commission thereunder,
although such counsel does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
documents incorporated by reference in the Prospectus or any further
amendment or supplement thereto made by the Company prior to such Time
of Delivery, except for those referred to in the opinion.
Such counsel shall also state as follows: We have not
independently verified the accuracy, completeness or fairness of the
statements made or included in the Registration Statement or the
Prospectus, except as described in specified paragraphs of the
opinion. However, in connection with the preparation by the Company
of the Registration Statement and the Prospectus, we participated in
various discussions and meetings with the Representatives, officers
and other representatives of the Company, and representatives of the
Company's independent public accountants at which the contents of the
Registration Statement and the Prospectus were discussed. No
information has come to our attention which causes us to conclude
(relying as to factual matters to the extent necessary to determine
materiality, upon the opinions of officers and other representatives
of the Company and Holding) that (i) the Registration Statement at
the time it became effective contained an untrue statement of a
material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not
misleading, and (ii) the Prospectus, or any supplement thereto, on
the date it was filed pursuant to the rules and regulations under the
Act and as of the date hereof, 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 were made, not misleading (except, in each case in
respect of the Registration Statement or the Prospectus or any
supplement thereto, that we express no view as to financial
statements and notes thereto, financial schedules and other financial
information included therein or to the exhibits to the Registration
Statement).
(d) Xxxxxx Xxxx, Esq., Senior Vice President, General Counsel and
Secretary of the Company and Holding, shall have furnished to you his
written opinion, dated such Time of Delivery, in form and substance
satisfactory to you, to the effect that:
17
(i) Each subsidiary of the Company listed on a schedule attached
to such counsel's opinion (the "Charter Subsidiaries") has been duly
incorporated or formed, as the case may be, and is validly existing as
a corporation or limited liability company, as the case may be, in good
standing under the laws of its jurisdiction of incorporation or
formation; and all of the issued shares of capital stock or limited
liability company interests, as the case may be, of each Charter
Subsidiary have been duly and validly authorized and issued and,
assuming receipt of requisite consideration therefore, are fully paid
and non-assessable;
(ii) Each of the Company and the Charter Subsidiaries has been
duly qualified as a foreign corporation 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 its subsidiaries is
a party or of which any property of the Company or any of its
subsidiaries is the subject which are 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;
(iv) To the best knowledge of such counsel, other than as set
forth in the Prospectus as of the dates set forth therein, there are no
persons with registration or similar rights to have any securities of
the Company or Holding registered pursuant to the Registration
Statement or otherwise registered under the Act and there are no
outstanding options, warrants or other rights calling for the issuance
of, and no commitments, plans or arrangements to issue, any securities
of the Company or Holding or any security convertible into or
exchangeable for securities of the Company or Holding;
(e) Xxxx, Raywid & Xxxxxxxxx, L.L.P., special regulatory counsel to the
Company and Holding, shall have furnished to you their written opinion,
dated such Time of Delivery, in form and substance reasonably satisfactory
to you, to the effect that:
(i) The issue and sale of the Shares being delivered at such Time
of Delivery by the Company and the compliance by the Company and
Holding with all of the provisions of this Agreement and the
consummation of the transactions herein 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
properties is subject;
18
(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
Shares being delivered at such Time of Delivery and the compliance by
the Company and Holding, as the case may be, with all of the provisions
of this Agreement and the consummation of the transactions herein
contemplated;
(iii) The statements set forth in the Prospectus under the
captions "Risk Factors" under the subheading "Regulatory and
Legislative Matters" and in "Regulation and Legislation," 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 the knowledge of such counsel based solely upon its
review of publicly available records of the FCC and operational
information provided by the Company's and its 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 and in the
aggregate, be reasonably expected to have a Material Adverse Effect;
(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;
(f) On the date of the Prospectus at a time prior to the execution of
this Agreement, at 9:30 a.m., New York City time, on the effective date of
any post-effective amendment to the Registration Statement filed subsequent
to the date of this Agreement and also at each Time of Delivery, each of
Xxxxxx Xxxxxxxx LLP, KPMG LLP, Ernst & Young LLP and PriceWaterhouseCoopers
LLP shall have furnished to you a letter or letters, dated the respective
dates of delivery thereof, in form and substance satisfactory to you;
19
(g) (i) Neither the Company nor any of its subsidiaries shall have
sustained since the date of the latest audited financial statements
included or incorporated by reference in the Prospectus any 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 (ii) since the respective dates as of
which information is given in the Prospectus there shall not have been any
change in the capital stock, limited liability company interests or
long-term debt of the Company or any of its subsidiaries or any change, or
any development involving a prospective change, in or affecting the general
affairs, management, financial position, stockholders' or members' equity,
or results of operations of the Company and its subsidiaries, otherwise
than as set forth or contemplated in the Prospectus, the effect of which,
in any such case described in clause (i) or (ii), is in the judgment of the
Representatives so material and adverse as to make it impracticable or
inadvisable to proceed with the public offering or the delivery of the
Shares being delivered at such Time of Delivery on the terms and in the
manner contemplated in this Agreement and in the Prospectus;
(h) On or after the date hereof (i) no downgrading shall have occurred
in the rating accorded the debt securities of the Company or any of its
subsidiaries by any "nationally recognized statistical rating
organization," as that term is defined by the Commission for purposes of
Rule 436(g)(2) under the Act, and (ii) no such organization shall have
publicly announced that it has under surveillance or review, with possible
negative implications, its rating of any of the debt securities of the
Company or any of its subsidiaries;
(i) On or after the date hereof there shall not have occurred any of
the following: (i) a suspension or material limitation in trading in
securities generally on the New York Stock Exchange or on the Nasdaq; (ii)
a suspension or material limitation in trading in the Stock on Nasdaq;
(iii) a general moratorium on commercial banking activities declared by
either Federal or New York State authorities; or (iv) the outbreak or
escalation of hostilities involving the United States or the declaration by
the United States of a national emergency or war, if the effect of any such
event specified in this clause (iv) in the judgment of the Representatives
makes it impracticable or inadvisable to proceed with the public offering
or the delivery of the Shares being delivered at such Time of Delivery on
the terms and in the manner contemplated in the Prospectus;
(j) The Shares to be sold at such Time of Delivery shall have been duly
approved for quotation on Nasdaq;
(k) The Company has obtained and delivered to the Underwriters executed
copies of an agreement from the persons and entities named in Schedule II
hereto, substantially to the effect set forth in the lock-up agreements
delivered in connection with the Company's October 2000 issuance of
convertible senior notes;
20
(l) The Company shall have complied with the provisions of Section 5(c)
hereof with respect to the furnishing of prospectuses on the New York
Business Day next succeeding the date of this Agreement; and
(m) The Company and Holding shall have furnished or caused to be
furnished to you at such Time of Delivery certificates of officers of each
of the Company and Holding satisfactory to you as to the accuracy of the
representations and warranties of each of the Company and Holding herein at
and as of such Time of Delivery, as to the performance by each of the
Company and Holding of all of its obligations hereunder to be performed at
or prior to such Time of Delivery, as to the matters set forth in
subsections (a) and (g) of this Section and as to such other matters as you
may reasonably request;
8. (a) The Company and Holding, jointly and severally, will indemnify
and hold harmless each Underwriter against any losses, claims, damages or
liabilities, joint or several, to which such Underwriter may become subject,
under the Act or otherwise, insofar as such losses, claims, damages or
liabilities (or actions in respect thereof) arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in any
Preliminary Prospectus, the Registration Statement or the Prospectus, or any
amendment 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 will
reimburse each Underwriter for any legal or other expenses reasonably incurred
by such Underwriter in connection with investigating or defending any such
action or claim as such expenses are incurred; provided, however, that the
Company and Holding shall 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 an untrue
statement or alleged untrue statement or omission or alleged omission made in
any Preliminary Prospectus, the Registration Statement or the Prospectus or any
such amendment or supplement in reliance upon and in conformity with written
information furnished to the Company by any Underwriter through Xxxxxx Xxxxxxx &
Co. Incorporated and Xxxxxxx, Sachs & Co. expressly for use therein.
(b) The Underwriters, severally and not jointly, will indemnify and
hold harmless the Company and Holding against any losses, claims, damages or
liabilities to which the Company or Holding may become subject, under the Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Preliminary Prospectus, the
Registration Statement or the Prospectus, or any amendment 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, in each case to the extent, but only to
the extent, that such untrue statement or alleged untrue statement or omission
or alleged omission was made in any Preliminary Prospectus, the Registration
Statement or the Prospectus or any such amendment or supplement in reliance upon
and in conformity with written information furnished to the Company by such
Underwriter through Xxxxxx Xxxxxxx Co. Incorporated and Xxxxxxx, Sachs & Co.
expressly for use therein; and will reimburse the Company for any legal or other
expenses reasonably incurred by the
21
Company in connection with investigating or defending any such action or claim
as such expenses are incurred.
(c) Promptly after receipt by an indemnified party under subsection (a)
or (b) above of notice of the commencement of any action, such indemnified party
shall, if a claim in respect thereof is to be made against the indemnifying
party under such subsection, notify the indemnifying party in writing of the
commencement thereof; but the omission so to notify the indemnifying party shall
not relieve it from any liability which it may have to any indemnified party
otherwise than under such subsection. In case any such action shall be brought
against any indemnified party and it shall notify the indemnifying party of the
commencement thereof, the indemnifying party shall be entitled to participate
therein and, to the extent that it shall wish, jointly with any other
indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such indemnified party (who shall not, except with the
consent of the indemnified party, be counsel to the indemnifying party), and,
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
liable to such indemnified party under such subsection for any legal expenses of
other counsel or any other expenses, in each case subsequently incurred by such
indemnified party, in connection with the defense thereof other than reasonable
costs of investigation. Any indemnifying party shall not, in connection with any
one action or separate but substantially similar or related actions in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the fees and expenses of more than one separate firm of attorneys (in
addition to any local counsel) for all indemnified parties. The Company and
Holding shall not be required to indemnify the Underwriters for any amounts paid
or payable by the Underwriters in the settlement of any action, proceeding or
investigation without the written consent of the Company to such settlement,
which consent shall not be unreasonably withheld. No indemnifying party shall,
without the written consent of the indemnified party, effect the settlement or
compromise of, or consent to the entry of any judgment with respect to, any
pending or threatened action or claim in respect of which indemnification or
contribution may be sought hereunder (whether or not the indemnified party is an
actual or potential party to such action or claim) unless such settlement,
compromise or judgment (i) includes an unconditional release of the indemnified
party from all liability arising out of such action or claim and (ii) does not
include a statement as to or an admission of fault, culpability or a failure to
act, by or on behalf of any indemnified party.
(d) If the indemnification provided for in this Section 8 is
unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative benefits received by the Company and Holding on the one hand and the
Underwriters on the other from the offering of the Shares. If, however, the
allocation provided by the immediately preceding sentence is not permitted by
applicable law or if the indemnified party failed to give the notice required
under subsection (c) above, then each indemnifying party shall
22
contribute to such amount paid or payable by such indemnified party in such
proportion as is appropriate to reflect not only such relative benefits but also
the relative fault of the Company and Holding on the one hand and the
Underwriters on the other in connection with the statements or omissions which
resulted in such losses, claims, damages or liabilities (or actions in respect
thereof), as well as any other relevant equitable considerations. The relative
benefits received by the Company and Holding on the one hand and the
Underwriters on the other shall be deemed to be in the same proportion as the
total net proceeds from the offering of the Shares purchased under this
Agreement (before deducting expenses) received by the Company and Holding bear
to the total underwriting discounts and commissions received by the Underwriters
with respect to the Shares purchased under this Agreement, in each case as set
forth in the table on the cover page of the Prospectus. The relative fault shall
be determined by reference to, among other things, whether the untrue or alleged
untrue statement of a material fact or the omission or alleged omission to state
a material fact relates to information supplied by the Company and Holding on
the one hand or the Underwriters on the other and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
statement or omission. The Company and Holding and the Underwriters agree that
it would not be just and equitable if contribution pursuant to this subsection
(d) 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 above in
this subsection (d). The amount paid or payable by an indemnified party as a
result of the losses, claims, damages or liabilities (or actions in respect
thereof) referred to above in this subsection (d) shall be deemed to include 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 subsection (d), no Underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the Shares underwritten by it and distributed to the public were
offered to the public exceeds the amount of any damages which such Underwriter
has otherwise been required to pay by reason of such untrue or alleged untrue
statement or omission or alleged omission. No person guilty of fraudulent
misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation. The Underwriters' obligations in this subsection (d) to
contribute are several in proportion to their respective underwriting
obligations and not joint.
(e) The obligations of the Company and Holding under this Section 8
shall be in addition to any liability which the Company and Holding may
otherwise have and shall extend, upon the same terms and conditions, to each
person, if any, who controls any Underwriter within the meaning of the Act; and
the obligations of the Underwriters under this Section 8 shall be in addition to
any liability which the respective Underwriters may otherwise have and shall
extend, upon the same terms and conditions, to each officer and director of the
Company and Holding and to each person, if any, who controls the Company or
Holding within the meaning of the Act.
9. (a) If any Underwriter shall default in its obligation to purchase
the Shares which it has agreed to purchase hereunder at a Time of Delivery, you
may in your discretion arrange for you or another party or other parties to
purchase such Shares on the
23
terms contained herein at such Time of Delivery. If within thirty-six hours
after such default by any Underwriter you do not arrange for the purchase of
such Shares, then the Company shall be entitled to a further period of
thirty-six hours within which to procure another party or other parties
satisfactory to you to purchase such Shares on such terms. In the event that,
within the respective prescribed periods, you notify the Company that you have
so arranged for the purchase of such Shares, or the Company notifies you that it
has so arranged for the purchase of such Shares, you or the Company shall have
the right to postpone such Time of Delivery for a period of not more than seven
days, in order to effect whatever changes may thereby be made necessary in the
Registration Statement or the Prospectus, or in any other documents or
arrangements, and the Company agrees to file promptly any amendments to the
Registration Statement or the Prospectus which in your opinion may thereby be
made necessary. The term "Underwriter" as used in this Agreement shall include
any person substituted under this Section with like effect as if such person had
originally been a party to this Agreement with respect to such Shares.
(b) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased does not exceed one-eleventh of the aggregate number of all
the Shares to be purchased at such Time of Delivery, then the Company shall have
the right to require each non-defaulting Underwriter to purchase the number of
Shares which such Underwriter agreed to purchase hereunder at such Time of
Delivery and, in addition, to require each non-defaulting Underwriter to
purchase its pro rata share (based on the number of Shares which such
Underwriter agreed to purchase hereunder) of the Shares of such defaulting
Underwriter or Underwriters for which such arrangements have not been made; but
nothing herein shall relieve a defaulting Underwriter from liability for its
default.
(c) If, after giving effect to any arrangements for the purchase of the
Shares of a defaulting Underwriter or Underwriters by you and the Company as
provided in subsection (a) above, the aggregate number of such Shares which
remains unpurchased exceeds one-eleventh of the aggregate number of all the
Shares to be purchased at such Time of Delivery, or if the Company shall not
exercise the right described in subsection (b) above to require non-defaulting
Underwriters to purchase Shares of a defaulting Underwriter or Underwriters (or,
with respect to the Second Time of Delivery, the obligations of the Underwriters
to purchase and of the Company to sell the Optional Shares) then this Agreement
shall thereupon terminate, without liability on the part of any non-defaulting
Underwriter, the Company or Holding, except for the expenses to be borne by the
Company, Holding and the Underwriters as provided in Section 6 hereof and the
indemnity and contribution agreements in Section 8 hereof; but nothing herein
shall relieve a defaulting Underwriter from liability for its default.
10. The respective indemnities, agreements, representations, warranties
and other statements of the Company and Holding and the several Underwriters, as
set forth in this Agreement or made by or on behalf of them, respectively,
pursuant to this Agreement, shall remain in full force and effect, regardless of
any investigation (or any statement as to the results thereof) made by or on
behalf of any Underwriter or any controlling person of any Underwriter, or the
Company and Holding or any officer or
24
director or controlling person of the Company or Holding, and shall survive
delivery of and payment for the Shares.
11. If this Agreement shall be terminated pursuant to Section 9 hereof,
the Company and Holding shall not then be under any liability to any Underwriter
except as provided in Sections 6 and 8 hereof; but if, for any other reason
other than a termination pursuant to Section 7(i), any Shares are not delivered
by or on behalf of the Company as provided herein, the Company and Holding will
reimburse the Underwriters through you for all out-of-pocket expenses approved
in writing by you, including fees and disbursements of counsel, reasonably
incurred by the Underwriters in making preparations for the purchase, sale and
delivery of the Shares not so delivered, but the Company and Holding shall then
be under no further liability to any Underwriter except as provided in Sections
6 and 8 hereof.
12. In all dealings hereunder, you shall act on behalf of each of the
Underwriters, and the parties hereto shall be entitled to act and rely upon any
statement, request, notice or agreement on behalf of any Underwriter made or
given by you jointly or by Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs
& Co. on behalf of you as the Representatives.
All statements, requests, notices and agreements hereunder shall be in
writing, and if to the Underwriters shall be delivered or sent by mail, telex or
facsimile transmission to you as the Representatives in care of Xxxxxx Xxxxxxx &
Co. Incorporated, 0000 Xxxxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: High Yield
Capital Markets Department, and Xxxxxxx, Sachs & Co., 00 Xxx Xxxx, 00xx Xxxxx,
Xxx Xxxx, Xxx Xxxx 00000, Attention: Registration Department; and if to the
Company or Holding shall be delivered or sent by mail, telex or facsimile
transmission to the address of the Company set forth in the Registration
Statement, Attention: Secretary; provided, however, that any notice to an
Underwriter pursuant to Section 8(c) hereof shall be delivered or sent by mail,
telex or facsimile transmission to such Underwriter at its address set forth in
its Underwriters' Questionnaire, or telex constituting such Questionnaire, which
address will be supplied to the Company by you upon request. Any such
statements, requests, notices or agreements shall take effect upon receipt
thereof.
13. This Agreement shall be binding upon, and inure solely to the
benefit of, the Underwriters, the Company, Holding and, to the extent provided
in Sections 8 and 10 hereof, the officers and directors of the Company and each
person who controls the Company, or any Underwriter, and their respective heirs,
executors, administrators, successors and assigns, and no other person shall
acquire or have any right under or by virtue of this Agreement. No purchaser of
any of the Shares from any Underwriter shall be deemed a successor or assign by
reason merely of such purchase.
14. Time shall be of the essence of this Agreement. As used herein, the
term "business day" shall mean any day when the Commission's office in
Washington, D.C. is open for business.
25
15. This Agreement shall be governed by and construed in accordance
with the laws of the State of New York.
16. This Agreement may be executed by any one or more of the parties
hereto in any number of counterparts, each of which shall be deemed to be an
original, but all such respective counterparts shall together constitute one and
the same instrument.
26
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, and upon the acceptance hereof by you, on
behalf of each of the Underwriters, this letter and such acceptance hereof shall
constitute a binding agreement between each of the Underwriters, the Company and
Holding. It is understood that your acceptance of this letter on behalf of each
of the Underwriters is pursuant to the authority set forth in a form of
Agreement among Underwriters, the form of which shall be submitted to the
Company for examination upon request, but without warranty on your part as to
the authority of the signers thereof.
Very truly yours,
Charter Communications, Inc.
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President, General Counsel
and Secretary
Charter Communications Holding Company, LLC
By: /s/ Xxxxxx X. Xxxx
-------------------------------
Name: Xxxxxx X. Xxxx
Title: Senior Vice President, General Counsel
and Secretary
27
Accepted as of the date hereof:
Xxxxxx Xxxxxxx & Co. Incorporated
Xxxxxxx, Sachs & Co.
Banc of America Securities LLC
Bear, Xxxxxxx & Co. Inc.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated
Xxxxxxx Xxxxx Barney Inc.
X.X. Xxxxxx Securities LLC
Credit Lyonnais Securities (USA) Inc.
Fleet Securities, Inc.
BMO Xxxxxxx Xxxxx
Dresdner Kleinwort Xxxxxxxxxxx Securities LLC
Acting severally on behalf of themselves and the several Underwriters named in
Schedule I hereto.
By: Xxxxxxx, Xxxxx & Co.
By: /s/ Xxxxxxx, Sachs & Co.
---------------------------------
Name:
Title:
By: Xxxxxx Xxxxxxx & Co. Incorporated
By: /s/ Xxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Principal
28
SCHEDULE I
Total Number Number of Optional
of Shares to be Purchased if
Firm Shares Maximum Option
Underwriter to be Purchased Exercised
----------- --------------- ---------
Xxxxxx Xxxxxxx & Co. Incorporated........ 18,336,150 2,750,423
Xxxxxxx, Sachs & Co...................... 18,336,150 2,750,423
Banc of America Securities LLC........... 2,619,450 392,917
Bear, Xxxxxxx & Co. Inc.................. 2,619,450 392,917
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated............................. 2,619,450 392,917
Xxxxxxx Xxxxx Barney Inc................. 2,619,450 392,917
X.X. Xxxxxx Securities LLC............... 2,095,560 314,334
Credit Lyonnais Securities (USA) Inc..... 1,047,780 157,167
Fleet Securities, Inc.................... 1,047,780 157,167
BMO Xxxxxxx Xxxxx........................ 523,890 78,584
Dresdner Kleinwort Xxxxxxxxxxx
Securities LLC........................... 523,890 78,584
---------- ---------
Total 52,389,000 7,858,350
SCHEDULE II
Charter Communications Holding Company, LLC
Charter Investment, Inc.
Vulcan Cable III Inc.
Xxxx X. Xxxxx
Xxxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxx X. Xxxxxxxxx
Xxxxxx X. Xxxx
Xxxx X. Xxxxxxxxx
Xxxxxx X. Xxxx
Xxxxx X. Xxxxxxxx
Xxxxx X. Xxxxxxx
Xxxx Xxx Xxxxx
Xxxx X. Xxxxxxxxxx
Xxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxx
Xxxxx X. Xxxxx
Xxxxx X. XxXxxx
Xxxxx X. Mir
Xxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxx
Xxxxx (Xxxx) X. Xxxxx, III
