EXHIBIT 1
UNDERWRITING AGREEMENT
October 12, 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
$1,000,000,007 aggregate principal amount of 2.0% Exchangeable Subordinated
Debentures due 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 13,982,103 Offered Securities set forth below at a purchase price of
$70.0896 per ZONES (as hereinafter defined), plus accrued interest, if any, from
October 15, 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 October 15, 1999, or at such other
time, not later than 5:00 p.m. (New York time) on October 20, 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 October 12, 1999
(together, the "Prospectus"), including the following:
Terms of Offered Securities
Securities: 2.0% Exchangeable Subordinated Debentures due 2029 (each, a
"ZONES").
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Maturity Date: October 15, 2029.
Interest Rate: Interest will be paid quarterly in an amount equal to
$.3576 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) $3.2184 per ZONES if redeemed prior to October 15,
2000, $2.1456 per ZONES if redeemed prior to October 15, 2001, $1.0728
per ZONES if redeemed prior to October 15, 2002, or zero per ZONES if
redeemed any time on or after October 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: January 15, April 15, July 15, and October 15
commencing January 15, 2000.
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Form and Denomination: One Global ZONES will be deposited with The
Depository Trust Company and the ZONES will be transferrable by
book-entry only.
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 the Underwriter.
Over-allotment Option: The Underwriter will have the option to purchase
up to 2,097,315 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 October 12, 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
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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 Xxxxxx Inc.
By /s/ Xxxxx Xxxxxx
--------------------------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Accepted:
COMCAST CORPORATION
By: /s/ Xxxx Xxxxxxxxx
-----------------------------
Name: Xxxx Xxxxxxxxx
Title: Vice President
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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
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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
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prior to the date of delivery, with any transfer taxes payable in connection
with the transfer of the Offered Securities to the Underwriters duly paid.
4. Conditions to Closing. The several obligations of the Underwriters
hereunder are subject to the following conditions:
(a) No stop order suspending the effectiveness of the Registration
Statement shall be in effect, and no proceedings for such purpose shall
be pending before or threatened by the Commission, and there shall have
been no material adverse change in the condition, business or operations
of the Company and its subsidiaries, as a whole, 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),
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(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 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
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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 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,
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(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 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
6
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 Company and duly executed and delivered by the respective
trustee therero, 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,
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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,
(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.
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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 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
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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 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.
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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.
(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).
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(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; 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
12
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 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
13
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 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
14
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, 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
15
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.
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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