CABLEVISION SYSTEMS CORPORATION
(a Delaware corporation)
__% ____________ due ____
PURCHASE AGREEMENT
Dated: _______________
CABLEVISION SYSTEMS CORPORATION
(a Delaware corporation)
$__________
__% ________________ due ____
PURCHASE AGREEMENT
___________, 199_
To the Underwriters named in Schedule I
Ladies and Gentlemen:
Cablevision Systems Corporation, a Delaware corporation (the
"Company"), proposes to issue and sell to the underwriters named in Schedule I
certain of its debt securities specified in Schedule II (the "Offered
Securities") on the terms and conditions stated herein and in Schedule II. The
Offered Securities will be issued pursuant to an indenture dated as of December
1, 1997 (the "Indenture"), which Indenture, for all purposes hereof, shall
include the Officers' Certificate (as defined in the Indenture) establishing the
form and terms of the Offered Securities pursuant to Section 301 of the
Indenture, between the Company and The Bank of New York, trustee (the "Trustee")
As used herein, unless the context otherwise requires, the term "Underwriters"
shall mean the firms named as Underwriters in Schedule I, and the term "you"
shall mean the Underwriters. The Offered Securities and the Indenture are more
fully described in the Prospectus and the Prospectus Supplement referred to
below.
The Company has filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (Registration No. 333-35263),
including a prospectus, relating to certain of its securities (including the
Offered Securities) and the offering thereof from time to time in accordance
with Rule 415 under the Securities Act of 1933, as amended (the "1933 Act").
Such registration statement has been declared effective by the Commission. As
provided in Section 3(a) hereof, a prospectus supplement reflecting the terms of
the Offered Securities, the terms of the offering thereof and the other matters
set forth therein has been prepared and will be filed pursuant to Rule 424 under
the 1933 Act. Such prospectus supplement, in the form first filed after the
date hereof pursuant to Rule 424(b), is herein referred to as the "Prospectus
Supplement". Such registration statement, as amended at the date hereof,
including the exhibits thereto and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, is
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herein called the "Registration Statement". Any registration statement filed
pursuant to Rule 462(b) under the 1933 Act is herein referred to as the "Rule
462(b) Registration Statement" and, after such filing, the term "Registration
Statement" shall include the Rule 462(b) Registration Statement. The basic
prospectus included or incorporated by reference in the Registration Statement
relating to all offerings of securities under the Registration Statement, as
supplemented by the Prospectus Supplement, is herein called the "Prospectus",
except that, if such basic prospectus is amended or supplemented on or prior to
the date on which the Prospectus Supplement is first filed pursuant to Rule 424,
the term "Prospectus" shall refer to the basic prospectus as so amended or
supplemented and as supplemented by the Prospectus Supplement, in either case
including the documents filed by the Company with the Commission pursuant to the
Securities Exchange Act of 1934, as amended (the "1934 Act"), that are
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 0000
Xxx. For purposes of this Agreement, all references to the Registration
Statement, any preliminary prospectus, the Prospectus or any amendment or
supplement to any of the foregoing shall be deemed to include the copy filed
with the Commission pursuant to its Electronic Data Gathering, Analysis and
Retrieval System ("XXXXX").
Section 1. REPRESENTATIONS AND WARRANTIES. (a) The Company
represents and warrants to and agrees with each of the Underwriters that:
(i) The Company meets the requirements for use of Form S-3 under
the 1933 Act and on the original effective date of the Registration
Statement and on the effective date of the most recent post-effective
amendment thereto or the Rule 462(b) Registration Statement, if any, the
Registration Statement and the Rule 462(b) Registration Statement, and any
amendments or supplements thereto, complied in all material respects with
the requirements of the 1933 Act and the rules and regulations of the
Commission thereunder (the "1933 Act Regulations"), the Trust Indenture Act
of 1939, as amended (the "1939 Act"), and the rules and regulations of the
Commission under the 1939 Act (the "1939 Act Regulations") 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 not misleading; on the date hereof and at the Closing Time (as
defined below), (A) the Registration Statement and any amendments and
supplements thereto, comply and will comply in all material respects with
the requirements of the 1933 Act, the 1933 Act Regulations, the 1939 Act
and the 1939 Act Regulations, (B) neither the Registration Statement nor
any amendment or supplement thereto includes or will include an untrue
statement of a material fact or omits or will omit to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading and (C) neither the Prospectus nor any amendment or
supplement thereto includes or will include an untrue statement of a
material fact or omit to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they
were made, not misleading; PROVIDED, HOWEVER, that this representation and
warranty
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does not apply to statements or omissions made in reliance upon and in
conformity with information furnished in writing by you to the Company
expressly for use in the Registration Statement or the Prospectus. At the
Closing Time, the Indenture will comply in all material respects with the
requirements of the 1939 Act and the 1939 Act Regulations. Each
preliminary prospectus and the Prospectus delivered to the Underwriters for
use in connection with this offering was identical in all material respects
to the electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) The documents incorporated by reference in the Prospectus
pursuant to Item 12 of Form S-3 under the 1933 Act, at the time they were
filed with the Commission, complied in all material respects with the
requirements of the 1934 Act, and the rules and regulations of the
Commission thereunder (the "1934 Act Regulations"), and, when read together
and with the other information in the Prospectus, do not and will not, on
the date hereof and at all times subsequent thereto up to the Closing Time,
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading.
(iii) KPMG Peat Marwick LLP, who are reporting upon the audited
financial statements and schedules included or incorporated by reference in
the Registration Statement, are independent accountants as required by the
1933 Act and the 1933 Act Regulations.
(iv) The consolidated historical financial statements included or
incorporated by reference in the Registration Statement present fairly the
consolidated financial position of the Company and its subsidiaries as of
the dates indicated and the consolidated results of operations and changes
in financial position of the Company and its subsidiaries for the periods
specified. Such financial statements have been prepared in conformity with
generally accepted accounting principles applied on a consistent basis
throughout the periods involved. The financial statement schedules, if
any, included in the Registration Statement present fairly the information
required to be stated therein. The selected financial data included in the
Prospectus present fairly the information shown therein and have been
compiled on a basis consistent with that of the audited consolidated
financial statements included or incorporated by reference in the
Registration Statement. The pro forma financial statements and other pro
forma financial information included in the Prospectus present fairly the
information shown therein, have been prepared in accordance with the
Commission's rules and guidelines with respect to pro forma financial
statements, have been properly compiled on the pro forma bases described
therein, and, in the opinion of the Company, the assumptions used in the
preparation thereof are reasonable and the
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adjustments used therein are appropriate to give effect to the transactions or
circumstances referred to therein.
(v) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware with
power and authority (corporate and other) under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus; and the Company is duly qualified to transact business as a
foreign corporation and is in good standing in each other jurisdiction in
which it owns or leases property of a nature, or transacts business of a
type, that would make such qualification necessary, except to the extent
that the failure to so qualify or be in good standing would not have a
material adverse effect on the Company and its subsidiaries, considered as
one enterprise.
(vi) The subsidiaries of the Company set forth on Schedule III
are, as of the date hereof, all of the "Restricted Subsidiaries", as such
term is defined in the indenture, dated as of August 26, 1997, for the
Company's 8 1/8% Senior Debentures due 2009 and the Bank Credit Agreement
(as such term is defined in the Indenture). The subsidiaries of the
Company set forth on Schedule IV are "Unrestricted Subsidiaries", as such
term is defined in the Indenture (the Restricted Subsidiaries and the
Unrestricted Subsidiaries are hereinafter referred to collectively as the
"Subsidiaries"). The Subsidiaries on Schedules III and IV with an asterisk
by their names are the only subsidiaries of the Company which had at
December 31, 1996 assets in excess of 10% of the consolidated assets of the
Company and its subsidiaries as at that date or had, in the aggregate, for
the fiscal year then ended revenues or operating cash flow in excess of 10%
of consolidated revenues or consolidated operating cash flow of the Company
and its subsidiaries for such period (such Subsidiaries are referred to
herein as the "Material Subsidiaries"). In making this determination, any
subsidiary acquired after December 31, 1996 shall be deemed to have been
acquired as of such date.
(vii) Each Material Subsidiary that is a corporation is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation with power and authority (corporate and
other) under such laws to own, lease and operate its properties and conduct
its business; and each such Material Subsidiary is duly qualified to
transact business as a foreign corporation and is in good standing in each
other jurisdiction in which it owns or leases property of a nature, or
transacts business of a type, that would make such qualification necessary,
except to the extent that the failure to so qualify or be in good standing
would not have a material adverse effect on the Company and its
subsidiaries, considered as one enterprise. All of the outstanding shares
of capital stock of each Material Subsidiary have been duly authorized and
validly issued and are fully paid and nonassessable and, except as
disclosed on Schedule III or IV to this Agreement or as disclosed or
contemplated by
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the Prospectus, are owned by the Company, directly or through one or more
subsidiaries, free and clear of any pledge, lien, security interest,
charge, claim, equity or encumbrance of any kind.
(viii) Each of the Material Subsidiaries in which the Company or a
subsidiary of the Company is a limited or general partner (hereinafter
called the "Partnerships") has been duly formed and is validly existing as
a limited or general partnership, as the case may be, under the laws of its
jurisdiction of organization, with full power and authority to own, lease
and operate properties and conduct its business; all necessary filings with
respect to the formation of the Partnerships as limited or general
partnerships (as the case may be) have been made under such laws; and each
of the Partnerships is duly qualified to transact business and is in good
standing in each other jurisdiction in which it owns or leases property of
a nature, or transacts business of a type, that would make such
qualification necessary, except to the extent that the failure to so
qualify or be in good standing would not have a material adverse effect on
the Company and its subsidiaries, considered as one enterprise.
(ix) The Company had at ___________, 199_ a duly authorized and
outstanding capitalization as set forth in the Prospectus under the caption
"Capitalization"; the Offered Securities conform in all material respects
to the description thereof contained in the Prospectus and such description
conforms in all material respects to the rights set forth in the
instruments defining the same.
(x) The Offered Securities have been duly authorized by the
Company. When executed, authenticated, issued and delivered in the manner
provided for in the Indenture and sold and paid for as provided herein, the
Offered Securities will constitute valid and binding obligations of the
Company entitled to the benefits of the Indenture and enforceable against
the Company in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and similar
laws of general applicability relating to or affecting creditors' rights
and general principles of equity (regardless of whether enforcement is
considered in a proceeding in equity or at law).
(xi) All of the outstanding shares of capital stock of the
Company have been duly authorized and validly issued and are fully paid and
nonassessable; and none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive rights of any stockholder
of the Company.
(xii) This Agreement has been duly authorized, executed and
delivered by the Company.
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(xiii) The Indenture has been duly authorized by the Company. The
Indenture as executed is or will be substantially in the form filed as an
exhibit to the Registration Statement. The Indenture, when duly executed
and delivered by the Company and the Trustee, will constitute a valid and
binding obligation of the Company, enforceable against the Company in
accordance with its terms, subject to bankruptcy, insolvency, fraudulent
transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and general
principles of equity (regardless of whether enforcement is considered in a
proceeding in equity or at law); and the form of Indenture conforms in all
material respects to the description thereof contained in the Prospectus.
(xiv) Since the respective dates as of which information is given
in the Registration Statement and the Prospectus, except as otherwise
stated therein or contemplated thereby, there has not been (A) any material
loss or interference with its business from fire, explosion, flood or other
calamity, whether or not covered by insurance, or from any labor dispute or
court or governmental action, order or decree and there has not been any
change in the capital stock or long-term debt of the Company or any of its
Subsidiaries or any change which the Company has reasonable cause to
believe will involve any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, considered as one enterprise, or (B) any
transaction entered into by the Company or any subsidiary, other than in
the ordinary course of business, that is material to the Company and its
subsidiaries, considered as one enterprise, or (C) any dividend or
distribution of any kind declared, paid or made by the Company on its
capital stock.
(xv) Neither the Company nor any Subsidiary is in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other agreement or instrument to which it is a party or by
which it may be bound or to which any of its properties may be subject,
except for such defaults that would not have a material adverse effect on
the financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, considered as one enterprise. The
execution and delivery of the Indenture and this Agreement (collectively,
the "Operative Documents") by the Company, the issuance and delivery of the
Offered Securities, the consummation by the Company of the transactions
contemplated by the Operative Documents, the compliance by the Company with
the terms of the Operative Documents have been duly authorized by all
necessary corporate action on the part of the Company and do not and will
not result in any violation of the charter or by-laws of the Company or any
Subsidiary, and do not and will not conflict with, or result in a breach of
any of the terms or provisions of, or constitute a default under, or result
in the creation or imposition of any lien, charge or encumbrance upon
7
any property or assets of the Company or any Subsidiary under, (A) any
contract, indenture, mortgage, loan agreement, note, lease or other
agreement or instrument to which the Company or any Subsidiary is a party
or by which it may be bound or to which any of its properties may be
subject (except for such conflicts, breaches or defaults or liens, charges
or encumbrances that would not have a material adverse effect on the
financial position, stockholders' equity or results of operations of the
Company and its subsidiaries, considered as one enterprise) or (B) any
existing applicable law, rule, regulation, judgment, order or decree of any
government, governmental instrumentality or court, domestic or foreign,
having jurisdiction over the Company or any Subsidiary or any of its
properties (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a material adverse effect on
the financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, considered as one enterprise) or (C) any
material agreement or other material instrument (including any franchise
agreement, license, permit or other governmental authorization granted by
the Federal Communications Commission (hereinafter called the "FCC"), The
New York State Commission on Cable Television, the Massachusetts Cable
Television Commission or any other governing body having jurisdiction over
cable television operations) binding upon the Company or any of its
Subsidiaries (except for such conflicts, breaches or defaults or liens,
charges or encumbrances that would not have a material adverse effect on
the financial position, stockholders' equity or results of operations of
the Company and its subsidiaries, considered as one enterprise).
(xvi) The statements in the Prospectus under "Risk Factors" and
"Description of Notes" and the statements in the Company's annual report on
Form 10-K for the year ended December 31, 199x (the "199x Form 10-K"),
which is incorporated by reference in the Prospectus, under "Business --
Cable Television Operations -- Competition" and "Business -- Cable
Television Operations -- Regulation" and in the Registration Statement in
Item 15, and the statements cross-referenced therein, insofar as such
statements constitute a summary of the legal matters, documents or
proceedings referred to therein, with respect to such legal matters,
documents and proceedings, do not contain any untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary in order to make the statements therein not
misleading.
(xvii) Except as disclosed in the Prospectus, no authorization,
approval, consent or license of any government, governmental
instrumentality or court, domestic or foreign (other than under the 1933
Act, the 1939 Act and the securities or blue sky laws of the various
states) is required (A) for the valid authorization, issuance, sale and
delivery of the Offered Securities in the United States, or (B) for the
execution, delivery or performance by the Company of this Agreement or the
Indenture, except for any such consent, approval, authorization, order or
registration
8
the failure of which to obtain or make or the absence of which would result
in no material adverse effect on the Company and its subsidiaries,
considered as one enterprise.
(xviii) Except as disclosed in the Prospectus, there is no action,
suit or proceeding before or by any government, governmental
instrumentality or court, domestic or foreign, now pending or, to the best
of the Company's knowledge, threatened against or affecting the Company or
any Subsidiary that is required to be disclosed in the Prospectus or that
the Company has reasonable cause to believe will result in any material
adverse change in the consolidated financial position, stockholders' equity
or results of operations of the Company and its subsidiaries, considered as
one enterprise, or that will materially and adversely affect the properties
or assets of the Company and its subsidiaries, considered as one
enterprise, or that the Company has reasonable cause to believe will
materially adversely affect the consummation of the transactions
contemplated in this Agreement.
(xix) There are no contracts or documents of a character required
to be described in the Registration Statement or the Prospectus or to be
filed as exhibits to the Registration Statement that are not described and
filed as required.
(xx) The Company and the Subsidiaries each has good and
marketable title to all material properties and assets described in the
Prospectus as owned by it, free and clear of all liens, charges,
encumbrances or restrictions, except such as (A) are described in the
Prospectus or (B) are neither material in amount nor materially significant
in relation to the business of the Company and its subsidiaries, considered
as one enterprise; and any material real property and buildings under lease
by the Company and the Subsidiaries are held by them under valid,
subsisting and enforceable leases with such exceptions as do not interfere,
to an extent material to the Company and its subsidiaries, considered as
one enterprise, with the use made and proposed to be made of such property
and buildings by the Company and the Subsidiaries.
(xxi) Except as disclosed in the Prospectus, the Company and the
Subsidiaries each owns, possesses or has obtained all material agreements,
governmental licenses, permits, certificates, consents, orders, approvals
and other material authorizations (including, without limitation, all
material governmental authorizations and agreements with public utilities
and microwave transmission companies and pole access and rental agreements)
necessary to own or lease, as the case may be, and to operate its
properties and to carry on its business as presently conducted, and neither
the Company nor any Subsidiary has received any notice of proceedings
relating to revocation or modification of any such licenses, permits,
certificates, consents, orders, approvals or authorizations.
9
(xxii) To the best knowledge of the Company and except as disclosed
in the Prospectus, no labor problem exists with its employees or with
employees of the Subsidiaries that could reasonably be expected to
materially and adversely affect the financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
considered as one enterprise.
(b) Any certificate signed by any officer of the Company or any
Subsidiary and delivered to you or to counsel for the Underwriters in connection
with the offering of the Offered Securities shall be deemed a representation and
warranty by the Company to each Underwriter as to the matters covered thereby.
Section 2. PURCHASE, SALE AND DELIVERY TO THE UNDERWRITERS; CLOSING.
(a) On the basis of the representations and warranties herein contained, and
subject to the terms and conditions herein set forth, the Company agrees to sell
to each Underwriter, and each Underwriter agrees, severally and not jointly, to
purchase from the Company, at the purchase price to the Underwriters set forth
in Schedule II, the principal amount of Offered Securities set forth opposite
the name of such Underwriter in Schedule I, plus any additional principal amount
of Offered Securities which you may become obligated to purchase pursuant to
Section 10 hereof.
(b) Payment of the purchase price for, and delivery of, the
Offered Securities shall be made by wire transfer of same day federal funds at
the offices of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000, or at such other place in The City of New York, at 10:00 A.M. on
___________, 199_, or at such other time not more than ten full Business Days
thereafter as shall be agreed upon by the Company and you, or as shall otherwise
be provided in Section 10 (such date and time of payment and delivery being
herein called the "Closing Time"). Payment shall be made to the Company in the
manner specified in Schedule II hereto, against delivery of the Offered
Securities to you for the respective accounts of the several Underwriters.
Except as otherwise provided in Schedule II hereto, the Offered Securities shall
be in such denominations ($1,000 or an integral multiple thereof) and registered
in such names as you may request in writing at least two full business days
before the Closing Time.
Section 3. CERTAIN COVENANTS OF THE COMPANY. The Company covenants
with each Underwriter as follows:
(a) Immediately following the execution of this Agreement, the
Company will prepare a Prospectus Supplement that complies with the
1933 Act and the 1933 Act Regulations and that sets forth the principal
amount of the Offered Securities and their material terms, the name of each
Underwriter participating in the offering and the principal amount of the
Offered Securities that each severally has agreed to purchase, the name of
each Underwriter, if any, acting as representative of
10
the Underwriters in connection with the offering, the price at which the
Offered Securities are to be purchased by the Underwriters from the
Company, any initial public offering price, any selling concession and
reallowance and any delayed delivery arrangements, and such other
information as you and the Company deem appropriate in connection with the
offering of the Offered Securities. The Company will promptly transmit
copies of the Prospectus Supplement to the Commission for filing pursuant
to Rule 424 under the 1933 Act and will furnish to the Underwriters as many
copies of any preliminary prospectus supplement and the Prospectus as you
shall reasonably request.
(b) During the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities, the Company will, subject to Section 3(c) hereof, file promptly
all documents required to be filed with the Commission pursuant to
Section 13 or 14 of the 1934 Act subsequent to the time the Registration
Statement becomes effective.
(c) During the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities, the Company will inform you of its intention to file any
amendment to the Registration Statement, any supplement to the Prospectus
or any document that would as a result thereof be incorporated by reference
in the Prospectus; will furnish you with copies of any such amendment,
supplement or other document a reasonable time in advance of filing; and
will not file any such amendment, supplement or other document in a form to
which you shall reasonably object.
(d) During the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities, the Company will notify you immediately, and confirm the notice
in writing (with respect to clause (i), upon request), (i) of the
effectiveness of any amendment to the Registration Statement, (ii) of the
receipt of any comments from the Commission with respect to the
Registration Statement, the Prospectus or the Prospectus Supplement,
(iii) of any request by the Commission to amend the Registration Statement
or any supplement to the Prospectus or for additional information relating
thereto and (iv) of the issuance by the Commission of any stop order
suspending the effectiveness of the Registration Statement, of the
suspension of the qualification of the Offered Securities for offering or
sale in any jurisdiction, or of the institution or to the Company's
knowledge, the threatening of any proceedings for any of such purposes.
The Company will use every reasonable effort to prevent the issuance of any
such stop order or of any order preventing or suspending such use and, if
any such order is issued, to obtain the lifting thereof at the earliest
possible moment.
11
(e) The Company has furnished or will furnish to you for the
managing Underwriters as many copies as you have reasonably requested of
each of the Registration Statement (as originally filed) and of all
amendments thereto, whether filed before or after the Registration
Statement became effective, and as many copies of all exhibits and
documents filed therewith, including documents incorporated by reference
into the Prospectus pursuant to Item 12 of Form S-3 under the 1933 Act
(through the end of the period when the Prospectus is required by the
1933 Act to be delivered in connection with sales of the Offered
Securities) and copies of all consents and certificates of experts, as you
may reasonably request. The Prospectus and any amendments or supplements
thereto furnished to the Underwriters will be identical in all material
respects to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(f) The Company will use its reasonable best efforts, in
cooperation with the Underwriters, to qualify the Offered Securities for
offering and sale under the applicable securities laws of such states and
other jurisdictions as you may designate, and to maintain such
qualifications in effect for a period of not less than one year from the
date hereof; PROVIDED, HOWEVER, that the Company shall not be obligated to
file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which it is
not so qualified or to subject itself to taxation in respect of doing
business in any jurisdiction in which it is not otherwise so subject. The
Company will file such statements and reports as may be required by the
laws of each jurisdiction in which the Offered Securities have been
qualified as above provided. The Company will also supply you with such
information as is necessary for the determination of the legality of the
Offered Securities for investment under the laws of such jurisdictions as
you may reasonably request.
(g) The Company will make generally available to its security
holders as soon as practicable, but not later than 45 days after the close
of the period covered thereby (90 calendar days in the case the period
corresponds to the fiscal year of the Company), an earnings statement of
the Company (in form complying with the provisions of Rule 158 of the 1933
Act Regulations) covering a period of 12 months beginning after the
effective date of the Registration Statement and covering a period of 12
months beginning after the effective date of any post-effective amendment
to the Registration Statement but not later than the first day of the
Company's fiscal quarter next following such effective date.
(h) The Company will comply to the best of its ability with the
1933 Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act
Regulations and the 1939 Act and the 1939 Act Regulations. If at any time
when the Prospectus is required by the 1933 Act to be delivered in
connection with sales of the Offered
12
Securities any event shall occur or condition exist as a result of which it
is necessary to amend the Registration Statement or amend or supplement the
Prospectus in order that the Prospectus will not include an untrue
statement of a material fact or omit to state a material fact necessary in
order to make the statements therein not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser, or if it
shall be necessary at any such time to amend the Registration Statement or
amend or supplement the Prospectus in order to comply with the requirements
of the 1933 Act or the 1933 Act Regulations, the Company will promptly
prepare and file with the Commission, subject to Section 3(c) hereof, such
amendment or supplement as may be necessary to correct such untrue
statement or omission or to make the Registration Statement or the
Prospectus comply with such requirements.
(i) The Company will use the net proceeds received by it
from the sale of the Offered Securities in the manner specified in the
Prospectus under the caption "Use of Proceeds".
(j) For a period of three years after the Closing Time, the
Company will furnish to you copies of all annual reports, quarterly reports
and current reports filed with the Commission on Forms 10-K, 10-Q and 8-K,
or such other similar forms as may be designated by the Commission, and
such other documents, reports and information as shall be furnished by the
Company to its securityholders generally.
(k) The Company will not be or become, at any time prior to the
expiration of three years after the Closing Time, an open-end investment
trust, unit investment trust or face-amount certificate company that is or
is required to be registered under Section 8 of the Investment Company Act
of 1940, as amended (the "Investment Company Act").
Section 4. PAYMENT OF EXPENSES. 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, any preliminary prospectus supplements and the
Prospectus and any amendments or supplements thereto, and the cost of furnishing
copies thereof to the Underwriters, (b) the preparation, printing and
distribution of this Agreement, the Indenture and Offered Securities, (c) the
delivery of the Offered Securities to the Underwriters, (d) the fees and
disbursements of the Company's counsel and accountants, (e) the qualification of
the Offered Securities under the applicable securities laws in accordance with
Section 3(f) hereof and any filing for review of the offering with the National
Association of Securities Dealers, Inc., including filing fees and fees and
disbursements of counsel for the Underwriters in connection therewith, (f) any
fees charged by rating agencies for rating the Offered Securities and (g) the
fees and expenses of the
13
Trustee, including the fees and disbursements of counsel for the Trustee, in
connection with the Indenture and the Offered Securities.
If this Agreement is terminated by you in accordance with the
provisions of Section 5 or 9(a)(i), the Company shall reimburse the Underwriters
for all their reasonable out-of-pocket expenses, including the reasonable fees
and disbursements of counsel for the Underwriters.
Section 5. CONDITIONS OF UNDERWRITERS' OBLIGATIONS. Except as
otherwise provided in Schedule II, the obligations of the several Underwriters
to purchase and pay for the Offered Securities that they have respectively
agreed to purchase hereunder are subject to the accuracy of the representations
and warranties of the Company contained herein or in certificates of any officer
of the Company or any Subsidiary delivered pursuant to the provisions hereof, to
the performance by the Company of its obligations hereunder, and to the
following further conditions:
(a) At the Closing Time, no stop order suspending the
effectiveness of the Registration Statement shall have been issued under
the 1933 Act and no proceedings for that purpose shall have been instituted
or shall be pending or, to the knowledge of the Company, shall be
contemplated by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel for the Underwriters.
(b) At the Closing Time, you shall have received a signed
opinion of Xxxxxxxx & Xxxxxxxx, counsel for the Company, dated as of the
Closing Time, in form and substance satisfactory to counsel for the
Underwriters, to the effect that:
(i) The Company has been duly incorporated and is an
existing corporation in good standing under the laws of the State of
Delaware.
(ii) The Indenture has been duly authorized, executed and
delivered by the Company and duly qualified under the 1939 Act; the
Offered Securities have been duly authorized, executed, authenticated,
issued and delivered; and the Indenture and the Offered Securities
constitute valid and legally binding obligations of the Company
enforceable in accordance with their terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors' rights and to general equity principles.
(iii) The execution and delivery by the Company of the
Indenture and this Agreement, the issuance of the Offered Securities
in accordance with the Indenture and the sale of the Offered
Securities by the Company to you
14
pursuant to this Agreement do not, and the performance by the Company
of its obligations under the Indenture and this Agreement will not,
violate the Company's Certificate of Incorporation or By-Laws.
(iv) All regulatory consents, authorizations, approvals
and filings required to be obtained or made by the Company under the
Federal laws of the United States, the laws of the State of New York
and the General Corporation Law of the State of Delaware for the
issuance, sale and delivery of the Offered Securities by the Company
to the Underwriters have been obtained or made.
(v) This Agreement has been duly authorized, executed and
delivered by the Company.
Such counsel shall also furnish you with a letter to the effect
that as counsel to the Company, they reviewed the Registration Statement
and the Prospectus, participated in discussions with representatives of
the Underwriters and of the Company and its accountants and advised the
Company as to the requirements of the 1933 Act and the applicable rules
and regulations thereunder; between the date of the Prospectus
Supplement and the Closing Time, such counsel participated in further
discussions with representatives of the Underwriters and of the Company
and its accountants in which the contents of certain portions of the
Prospectus and related matters were discussed and reviewed certain
documents filed by the Company with the Commission, certificates of
certain officers of the Company, opinions addressed to the Underwriters
from Xxxxxx X. Xxxxx, Esq. and Mintz, Levin, Cohn, Ferris, Glovsky and
Popeo, P.C. and a letter from the Company's independent accountants; on
the basis of the information that such counsel gained in the course of
the performance of the services referred to above, considered in the
light of such counsel's understanding of the applicable law (including
the requirements of Form S-3 and the character of the prospectus
contemplated thereby) and the experience such counsel have gained
through their practice under the 1933 Act, they confirm to you that, in
such counsel's opinion, each part of the Registration Statement, when
such part became effective, and the Prospectus, and each amendment or
supplement thereto, as of their respective effective or issue dates
appeared on their face to be appropriately responsive in all material
respects to the requirements of the 1933 Act, the 1939 Act, and the
applicable rules and regulations of the Commission thereunder; further,
nothing that came to such counsel's attention in the course of such
review has caused such counsel to believe that any part of the
Registration Statement, when such part became effective, contained any
untrue statement of a material fact or omitted to state any material
fact required to be stated therein or necessary to make the statements
therein not misleading or that the Prospectus as of the date of the
Prospectus Supplement contained any untrue statement of a material fact
or omitted to state any material fact necessary in order to make the
statements therein, in the light
15
of the circumstances under which they were made, not misleading; also,
nothing that came to the attention of such counsel in the course of the
procedures described in the second clause of this paragraph has caused
such counsel to believe that the Prospectus, as supplemented by the
Prospectus Supplement, as of the Closing Time, contained any untrue
statement of a material fact or omitted to state any material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading; such counsel
shall state that the limitations inherent in the independent
verification of factual matters and the character of determinations
involved in the registration process are such that 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 made under the captions "Description of Debt
Securities", "Description of the Notes" and "Underwriting" in the
Prospectus insofar as they relate to provisions of documents therein
described; also, such counsel need express no opinion or belief as to
the financial statements or other financial data contained in the
Registration Statement or the Prospectus, or as to the description of
statutes, regulations, proceedings or matters referred to in Section
5(d) hereof or as to the statement of eligibility of the Trustee under
the Indenture under which the Offered Securities are being issued.
Finally, such counsel shall assume that any Rule 462(b) Registration
Statement was filed with the Commission prior to the time that any
confirmations of the sale of any of the Offered Securities were sent or
given to investors.
In rendering such opinion, such counsel may state that they express no
opinion as to the laws of any jurisdiction other than the Federal laws of
the United States, the laws of the State of New York and the General
Corporation Law of the State of Delaware, and no opinion as to federal or
state communications laws. Such counsel may also state that, insofar as
such opinion involves factual matters, they have relied, to the extent they
deem proper, upon certificates of officers of the Company and the
Subsidiaries and certificates of public officials.
(c) At the Closing Time you shall have received a signed opinion
of Xxxxxx X. Xxxxx, Esq., Executive Vice President, Secretary and General
Counsel for the Company, in form and substance satisfactory to counsel to
the Underwriters, to the effect that:
(i) The Company is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware
with corporate power and authority under such laws to own, lease and
operate its properties and conduct its business as described in the
Prospectus.
(ii) The Company is duly qualified to transact business as
a foreign corporation and is in good standing in each other
jurisdiction in which it owns
16
or leases property of a nature, or transacts business of a type, that
would make such qualification necessary, except where the failure to
be so qualified would not have a material adverse effect on the
Company and its subsidiaries, considered as one enterprise.
(iii) Each Material Subsidiary that is a corporation is
duly incorporated, validly existing and in good standing under the
laws of the jurisdiction of its incorporation, with corporate power
and authority under such laws to own, lease and operate its properties
and conduct its business. Each Material Subsidiary that is a
partnership is duly organized under the laws of the jurisdiction of
its organization.
(iv) All of the outstanding shares of capital stock of
each Material Subsidiary have been duly authorized and validly issued
and are fully paid and nonassessable; except as set forth on Schedules
III and IV to this Agreement or as disclosed in or as contemplated by
the Prospectus, all of such shares are owned by the Company, directly
or through one or more subsidiaries, free and clear of any material
pledge, lien, security interest, charge, claim, equity or encumbrance
of any kind; no holder thereof is subject to personal liability under
the certificate of incorporation or by-laws of the respective Material
Subsidiary or the corporation law of the jurisdiction in which such
Material Subsidiary is organized by reason of being such a holder and
none of such shares was issued in violation of the preemptive rights
of any stockholder of such Material Subsidiary under the certificate
of incorporation or by-laws of such Material Subsidiary or the
corporation law of the jurisdiction in which such Material Subsidiary
is organized.
(v) To such counsel's knowledge, there are no legal or
governmental proceedings pending or threatened to which the Company or
any of its subsidiaries is or may be a party, or of which any of their
properties are or may be the subject, of a character which are
required to be disclosed in the Registration Statement, the
Prospectus, the 1996 Form 10-K or any Form 10-Q of the Company, other
than those disclosed therein.
(vi) The documents incorporated by reference in the
Prospectus or any further amendment or supplement thereto made by the
Company prior to the Closing Time (other than the financial statements
and related schedules therein and any untrue statement or omission of
a material fact contained therein which was corrected in the
Prospectus, 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 Exchange Act and the rules and regulations of the
17
Commission thereunder; and he has no reason to believe that such
documents, read together, as of the date of the Prospectus Supplement
or as of the Closing Time, contained or contain 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 were made, not misleading.
(vii) Such counsel does not know of any contracts or
documents of a character required to be described or referred to in
the Registration Statement or the Prospectus or to be filed as
exhibits to the Registration Statement that are not described,
referred to or filed as required.
(viii) To the knowledge of such counsel, no default exists
in the performance or observance of any material obligation,
agreement, covenant or condition contained in any contract, indenture,
loan agreement, note, lease or other agreement or instrument that is
described or referred to in the Registration Statement or the
Prospectus or filed as an exhibit to the Registration Statement or any
subsequent Form 10-Q of the Company, which default would have a
material adverse effect on the financial position, stockholders'
equity or results of operations of the Company and its subsidiaries,
considered as one enterprise.
(ix) The execution and delivery of this Agreement and the
Indenture by the Company, the issuance and delivery of the Offered
Securities, the consummation by the Company of the transactions
contemplated in this Agreement and compliance by the Company with the
terms of this Agreement and the Indenture will not conflict with the
terms or provisions of, or constitute a default under, any indenture,
mortgage, deed of trust, loan agreement or other agreement or
instrument (including any franchise agreement, license, permit or
other governmental authorization granted by the FCC, The State of New
York Public Service Commission and the Department of Public Service,
or any other Federal or New York State governing body having
jurisdiction over cable television operations) known to such counsel
to which the Company or any Subsidiary is a party or by which the
Company or any Subsidiary is bound or to which any of the property or
assets of the Company or any Subsidiary is subject, which conflict,
breach, violation or default would have a material adverse effect on
the financial position, stockholders' equity or results of operations
of the Company and its subsidiaries, taken as a whole, nor will such
action result in any violation of the provisions of the Certificate of
Incorporation or By-laws of the Company or any Federal, New York or
Delaware General Corporation Law statute or any order, rule or
regulation known to such counsel of any Federal, New York or Delaware
court or governmental agency or body having jurisdiction over the
Company or any
18
Subsidiary or any of their properties, which violation in each case
would have a material adverse effect on the financial position,
stockholders' equity or results of operations of the Company and its
subsidiaries, taken as a whole; and no consent, approval,
authorization, order, registration or qualification of or with any
such court or governmental agency or body is required for the issue
and sale of the Offered Securities or the consummation by the Company
of the transactions contemplated by this Agreement, except with
respect to such consents, approvals, authorizations, registrations or
qualifications as may be required under state or foreign securities
laws in connection with the purchase and distribution of the Offered
Securities by the Underwriters.
In rendering such opinion, such counsel may state that he expresses no
opinion as to the laws of any jurisdiction other than the Federal laws of
the United States (other than federal communications laws, as to which such
counsel need express no opinion), the laws of the State of New York and the
General Corporation Law of the State of Delaware. In giving such opinion,
such counsel may rely, as to all matters governed by the laws of any other
jurisdiction, upon opinions of other counsel, who shall be counsel
satisfactory to counsel for the Underwriters, in which case the opinion
shall state that he believes you and he are entitled to so rely. Such
counsel may also state that, insofar as such opinion involves factual
matters, he has relied, to the extent he deems proper, upon certificates of
officers of the Company and the Subsidiaries and certificates of public
officials.
(d) At the Closing Time you shall have received a signed opinion
of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., as special
communications counsel to the Company, in form and substance satisfactory
to counsel to the Underwriters, to the effect that:
(i) The approvals, if any, required to be obtained from
the FCC to consummate the transactions contemplated by this Agreement
have been obtained and are in full force and effect.
(ii) Such counsel does not know of any federal
communications and copyright statutes that are principally directed to
the regulation of cable properties applicable to the Company that are
not described in the Prospectus but would be material and relevant to
the business of the Company, and the descriptions in the Prospectus of
such statutes therein described are accurate and fairly summarize such
statutes.
(iii) The information in the Prospectus Supplement under
the captions "Risk Factors -- Risks Related to Regulation", "Risk
Factors -- Risk of Competition" and "Risk Factors -- Competition from
Telephone
19
Companies" and in the 1996 Form 10-K under the captions "Business --
Cable Television Operations -- Regulation" and "Business -- Cable
Television Operations -- Competition", to the extent that such
sections describe statutes, regulations and governmental proceedings
or matters involving federal communications and copyright law and
policy and the impact thereof on the business in which the Company and
its subsidiaries are engaged, has been reviewed by them and fairly
represents the federal communications and copyright law described
therein applicable to the Company and its subsidiaries as disclosed in
the Prospectus and material and relevant to the business of the
Company and its subsidiaries.
In giving such opinion, such counsel may rely, as to all matters governed
by the laws of jurisdictions other than the law of the District of
Columbia, the federal law of the United States and the corporate law of the
State of Delaware, upon opinions of other counsel, who shall be counsel
satisfactory to counsel for the Underwriters, in which case the opinion
shall state that they believe you and they are entitled to so rely. Such
counsel may also state that, insofar as such opinion involves factual
matters, they have relied, to the extent they deem proper, upon
certificates of officers of the Company and the Subsidiaries and
certificates of public officials. Such counsel may strictly confine such
opinion to matters involving the Federal Communications Act of 1934, as
amended (the "Communications Act"), the rules and regulations of the FCC,
and those provisions of the federal copyright law that are principally
directed to the regulation of cable properties. Such counsel may also
limit such opinion to the state of the law as it exists under the
Communications Act, the rules and regulations of the FCC and federal
copyright laws as of the date thereof.
(e) At the Closing Time, you shall have received the favorable
opinion of Shearman & Sterling, counsel for the Underwriters, dated as of
the Closing Time, to the effect that the opinions delivered pursuant to
Sections 5(b), 5(c) and 5(d) appear on their face to be appropriately
responsive to the requirements of this Agreement except, specifying the
same, to the extent waived by you, and with respect to the incorporation
and legal existence of the Company, the Offered Securities, this Agreement,
the Indenture, the Registration Statement, the Prospectus, the documents
incorporated by reference therein and such other related matters as you may
require. In rendering such opinion, such counsel may state that they
express no opinion as to the laws of any jurisdiction other than the
Federal laws of the United States, the laws of the State of New York and
the General Corporation Law of the State of Delaware, and no opinion as to
federal or state communications laws. Such counsel may also state that,
insofar as such opinion involves factual matters, they have relied, to the
extent they deem proper, upon certificates of officers of the Company and
the Subsidiaries and certificates of public officials.
20
(f) At the Closing Time, (i) the Registration Statement and the
Prospectus as they may then be amended or supplemented, shall contain all
statements that are required to be stated therein under the 1933 Act and
the 1933 Act Regulations and in all material respects shall conform to the
requirements of the 1933 Act and the 1933 Act Regulations and the 1939 Act
and the 1939 Act Regulations, and neither the Registration Statement nor
the Prospectus, as they may then be amended or supplemented, shall 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, (ii) there shall not have been, since the respective dates
as of which information is given in the Registration Statement, any
material adverse change or any development involving a prospective material
adverse change in or affecting the financial position, stockholders'
deficiency or results of operations of the Company and its subsidiaries,
considered as one enterprise, (iii) the Company shall have complied with
all agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to the Closing Time and (iv) the other
representations and warranties of the Company set forth in Section 1(a)
shall be accurate as though expressly made at and as of the Closing Time.
At the Closing Time, you shall have received a certificate of the
President, a Vice Chairman or a Vice President, and the Treasurer or
Controller, of the Company, dated as of the Closing Time, to such effect.
(g) You shall have received the letter specified in Sections 1
and 2 of Exhibit B at the date hereof and the letter specified in Section 3
of Exhibit A at the Closing Time.
(h) On or prior to the date hereof, you shall have received a
letter or letters from the independent public accountants for
Tele-Communications, Inc., in form and substance satisfactory to you, with
regard to the financial information of the TCI Contributed Entities, as
such term is defined in the Prospectus, included in the Prospectus under
the heading "The Company--Cable Television."
(i) Unless otherwise specified in Schedule II hereto, on or
after the date hereof (i) no downgrading shall have occurred in the rating
accorded the Company's debt securities by any "nationally recognized
statistical rating organization," as that term is defined by the Commission
for purposes of Rule 436(g)(2) under the 1933 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
Company's debt securities.
(j) At the Closing Time, counsel for the Underwriters shall have
been furnished with all such documents, certificates and opinions as they
may reasonably request for the purpose of enabling them to pass upon the
issuance and sale of the
21
Offered Securities as herein contemplated and the matters referred to in
Section 5(e) and in order to evidence the accuracy and completeness of any
of the representations, warranties or statements of the Company, the
performance of any of the covenants of the Company, or the fulfillment of
any of the conditions herein contained.
If any of the conditions specified in this Section 5 shall not have
been fulfilled when and as required by this Agreement to be fulfilled, this
Agreement may be terminated by you on notice to the Company at any time at
or prior to the Closing Time, and such termination shall be without
liability of any party to any other party, except as provided in Section 4.
Notwithstanding any such termination, the provisions of Sections 6, 7 and 8
shall remain in effect.
Section 6. INDEMNIFICATION. (a) The Company agrees to indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of Section 15 of the 1933 Act as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, arising out of an untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statement (or any amendment thereto), including all documents incorporated
therein by reference, or the omission or alleged omission therefrom of a
material fact required to be stated therein or necessary to make the
statements therein not misleading or arising out of an untrue statement or
alleged untrue statement of a material fact included in any preliminary
prospectus supplement or the Prospectus (or any amendment or supplement
thereto) or the omission or alleged omission therefrom of a material fact
necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, as incurred, to the extent of the aggregate amount paid
in settlement of any litigation, or investigation or proceeding by any
governmental agency or body, commenced or threatened, or of any claim
whatsoever based upon any such untrue statement or omission, or any such
alleged untrue statement or omission, if such settlement is effected with
the written consent of the Company; and
(iii) against any and all expense whatsoever, as incurred
(including fees and disbursements of counsel chosen by you), reasonably
incurred in investigating, preparing or defending against any litigation,
or investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission, to
the extent that any such expense is not paid under subparagraph (i) or (ii)
above;
22
PROVIDED, HOWEVER, that this indemnity agreement does not apply to any loss,
liability, claim, damage or expense to the extent arising out of an untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by any
Underwriter through you expressly for use in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto).
The foregoing indemnity with respect to any untrue statement contained in
or any omission from a preliminary prospectus supplement, shall not inure to the
benefit of any Underwriter (or any person controlling such Underwriter) on
account of any loss, claim, damage, liability or litigation arising from the
sale of Offered Securities to any person by such Underwriter if such Underwriter
failed to send or give a copy of the Prospectus, as the same may be supplemented
or amended, to such person within the time required by the 1933 Act, and the
untrue statement or alleged untrue statement or omission or alleged omission of
a material fact in such preliminary prospectus supplement was corrected in the
Prospectus, unless such failure resulted from noncompliance by the Company with
its obligations hereunder to furnish the Underwriters with copies of the
Prospectus.
(b) Each Underwriter severally agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement and each person, if any, who controls the Company within
the meaning of Section 15 of the 1933 Act, against any and all loss, liability,
claim, damage and expense described in the indemnity agreement in Section 6(a),
as incurred, but only with respect to untrue statements or omissions, or alleged
untrue statements or omissions, made in the Registration Statement (or any
amendment thereto) or any preliminary prospectus supplement or the Prospectus
(or any amendment or supplement thereto) in reliance upon and in conformity with
written information furnished to the Company by such Underwriter through you
expressly for use in the Registration Statement (or any amendment or supplement
thereto) or such preliminary prospectus supplement or the Prospectus (or any
amendment or supplement thereto).
(c) Each indemnified party shall give prompt notice to each
indemnifying party of any action commenced against it in respect of which
indemnity may be sought hereunder, but failure to so notify an indemnifying
party shall not relieve it from any liability which it may have otherwise than
on account of this indemnity agreement. An indemnifying party may participate
at its own expense in the defense of such action; PROVIDED, HOWEVER, that
counsel to the indemnifying party shall not (except with the consent of the
indemnified party) also be counsel to the indemnified party. In no event shall
the indemnifying party or parties be liable for the fees and expenses of more
than one counsel for all indemnified parties in connection with any one action
or separate but similar or related actions in the same jurisdiction arising out
of the same general allegations or circumstances.
23
Section 7. CONTRIBUTION. In order to provide for just and equitable
contribution in circumstances under which the indemnity provided for in Section
6 is for any reason held to be unenforceable by the indemnified parties although
applicable in accordance with its terms, the Company and the Underwriters shall
contribute to the aggregate losses, liabilities, claims, damages and expenses of
the nature contemplated by such indemnity incurred by the Company and one or
more of the Underwriters, as incurred, in such proportions that the Underwriters
are responsible for that portion represented by the percentage that the
underwriting discount hereunder with respect to the offering of the Offered
Securities bears to the initial public offering price of the Offered Securities,
and the Company is responsible for the balance; PROVIDED, HOWEVER, that no
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the 0000 Xxx) shall be entitled to contribution from any person who was
not guilty of such fraudulent misrepresentation. For purposes of this Section,
each person, if any, who controls an Underwriter within the meaning of Section
15 of the 1933 Act shall have the same rights to contribution as such
Underwriter, and each director of the Company, each officer of the Company who
signed the Registration Statement, and each person, if any, who controls the
Company within the meaning of Section 15 of the 1933 Act shall have the same
rights to contribution as the Company.
Section 8. AGREEMENTS TO SURVIVE DELIVERY. The indemnities,
agreements and other statements of the Company or its officers set forth in or
made pursuant to this Agreement will remain operative and in full force and
effect regardless of any investigation made by or on behalf of the Company, any
Underwriter or person who controls the Company or any Underwriter within the
meaning of Section 15 of the 1933 Act and will survive delivery of and payment
for the Offered Securities.
Section 9. TERMINATION OF AGREEMENT. (a) You may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing Time
(i) if there has been, since the respective dates as of which information is
given in the Registration Statement, any material adverse change or any
development involving a prospective material adverse change in or affecting the
financial position, stockholders' equity or results of operations of the Company
and its subsidiaries, considered as one enterprise or (ii) if there has occurred
any outbreak or escalation of hostilities or other calamity or crisis the effect
of which on the financial markets of the United States is such as to make it, in
your judgment, impracticable to market the Offered Securities or enforce
contracts for the sale of Offered Securities or (iii) if trading in any
securities of the Company has been suspended by the Commission, the National
Association of Securities Dealers, Inc. or the American Stock Exchange, or if
trading generally on either the American Stock Exchange or the New York Stock
Exchange or in the over-the-counter market has been suspended, or minimum or
maximum prices for trading have been fixed, or maximum ranges for prices for
securities have been required, by such exchange or by order of the Commission,
the National
24
Association of Securities Dealers, Inc. or any other governmental authority or
(iv) if a banking moratorium has been declared by either federal or New York
authorities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party,
except to the extent provided in Section 4. Notwithstanding any such
termination, the provisions of Sections 6, 7 and 8 shall remain in effect.
Section 10. DEFAULT BY ONE OR MORE OF THE UNDERWRITERS. If one or
more of the Underwriters shall fail at the Closing Time to purchase the Offered
Securities that it or they are obligated to purchase pursuant to this Agreement
(the "Defaulted Offered Securities"), you shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any other Underwriters, to purchase all, but not less than all,
of the Defaulted Offered Securities in such amounts as may be agreed upon and
upon the terms set forth in this Agreement; if, however, you have not completed
such arrangements within such 24-hour period, then:
(a) if the aggregate principal amount of Defaulted Offered
Securities does not exceed 10% of the aggregate principal amount of the
Offered Securities to be purchased pursuant to this Agreement, the
non-defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that the principal amounts of Offered Securities
set forth opposite the names of such non-defaulting Underwriters in
Schedule I bear to the total aggregate principal amount of Offered
Securities set forth opposite the names of such non-defaulting
Underwriters, or
(b) if the aggregate principal amount of Defaulted Offered
Securities exceeds 10% of the aggregate principal amount of the Offered
Securities to be purchased pursuant to this Agreement, this Agreement shall
terminate without liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default that does not result in a termination
of this Agreement, either you or the Company shall have the right to postpone
the Closing Time for a period not exceeding seven days in order to effect any
required changes in the Registration Statement or Prospectus or in any other
documents or arrangements. As used herein, the term "Underwriter" includes any
person substituted for an Underwriter under this Section 10.
Section 11. NOTICES. All notices and other communications under this
Agreement shall be in writing and shall be deemed to have been duly given if
delivered, mailed or transmitted by any standard form of telecommunication.
Notices to you shall be
25
directed to [INSERT UNDERWRITERS' NAMES AND ADDRESSES]; and notices to the
Company shall be directed to it at Cablevision Systems Corporation, Xxx Xxxxx
Xxxxxxxxx, Xxxxxxxx, Xxx Xxxx 00000, attention of Xxxxxx X. Xxxxx, Esq.,
Executive Vice President, General Counsel and Secretary, with a copy to
Xxxxxxxx & Xxxxxxxx, at 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, attention
of Xxxx X. Xxxx, Esq.
Section 12. PARTIES. The agreement herein set forth is made solely
for the benefit of the several Underwriters, the Company and, to the extent
expressed, any person who controls the Company or any of the Underwriters within
the meaning of Section 15 of the 1933 Act, and the directors of the Company, its
officers who have signed the Registration Statement and their respective
executors, administrators, successors and assigns and, subject to the provisions
of Section 10, no other person shall acquire or have any right under or by
virtue of this Agreement. The term "successors and assigns" shall not include
any purchaser, as such purchaser, from any Underwriter of the Offered
Securities. If there are two or more Underwriters, all of their obligations
hereunder are several and not joint.
Section 13. GOVERNING LAW AND TIME. This Agreement shall be governed
by the laws of the State of New York. Specified times of the day refer to
New York City time.
Section 14. CAPTIONS. The captions included in this Agreement are
included solely for convenience of reference and are not considered to be part
of this Agreement.
Section 15. COUNTERPARTS. This Agreement may be executed in one or
more counterparts and when a counterpart has been executed by each party, all
such counterparts taken together shall constitute one and the same agreement.
_________________________
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement between the Company and each
Underwriter in accordance with its terms.
Very truly yours,
CABLEVISION SYSTEMS CORPORATION
By
------------------------------------
Name:
Title:
Confirmed and accepted as of
the date first above written:
[UNDERWRITERS]
By:
By
--------------------------------------
Name:
Title:
SCHEDULE I
__% _____________due ____
Underwriter Principal
----------- Amount
------
$
----------------
Total. . . . . . . . . . . . . . . . . . . . . . . . . $
----------------
----------------
SCHEDULE II
to Purchase Agreement
Dated ____________
CABLEVISION SYSTEMS CORPORATION
__% ______________ due ____
Principal amount to be issued: $____________
Interest rate: __%, payable semi-annually each _________ and _________,
commencing _________, 199_.
Interest accrues from: ___________, 199_.
Date of maturity: ___________, ______.
Redemption Provisions: None
Sinking fund requirements: None.
Initial public offering price: _______% of the principal amount of the Notes
plus accrued interest from __________, 199_.
Purchase price: _______% of the principal amount of the Notes plus accrued
interest from _______.
Reimbursement of Expenses: The Company will reimburse $_________ of expenses of
the Underwriters incurred in connection with the offering of the Notes.
Method of Payment: Payment shall be made to the Company in same day federal
funds by wire transfer.
Closing date, time and location: 10:00 A.M., ___________, 199_ at the offices
of Shearman & Sterling, 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000.
Listing requirement: None.
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SCHEDULE III
RESTRICTED SUBSIDIARIES(1)
(* - MATERIAL SUBSIDIARY)
SCHEDULE IV
UNRESTRICTED SUBSIDIARIES
(* - MATERIAL SUBSIDIARY)
EXHIBIT A
__________, 199_
MATTERS TO BE COVERED BY LETTER OR LETTERS OF INDEPENDENT
PUBLIC ACCOUNTANTS
KPMG Peat Marwick LLP shall have furnished to you the following
letter or letters (in each case in form and substance satisfactory to you):
(1) At the date hereof, a letter to the effect that:
(a) they are independent accountants with respect to the
Company and its subsidiaries within the meaning of the 1933 Act and
the applicable published 1933 Act Regulations;
(b) in their opinion, except as disclosed in the
Registration Statement, the audited consolidated financial
statements and the related financial statement schedules of the
Company and its subsidiaries included or incorporated by reference
in such annual report on Form 10-K comply as to form in all material
respects with the applicable accounting requirements of the 1933 Act
as it applies to registration statements on Form S-3 and the related
published 1933 Act Regulations and of the 1934 Act as it applies to
Form 10-K and the related published 1934 Act Regulations; and
(c) in addition to their examinations, inspections,
inquiries and other procedures referred to therein, they have
performed such other procedures, specified by you, not constituting
an audit, as they have agreed to perform and report on with respect
to certain amounts, percentages, numerical data and other financial
information in the Form 10-K and have compared certain of such
amounts, percentages, numerical data and financial information with,
and have found such items to be in agreement with or derived from,
the detailed accounting records of the Company and its subsidiaries.
(2) At the date hereof, a letter with respect to each of the
Company's quarterly reports on Form 10-Q (each a "10-Q Letter") filed prior
to the date hereof and subsequent to the Company's most recently filed
annual report on Form 10-K, to the effect that:
(a) they reaffirm as of the date of such letter (and as
though made on the date of such letter) all statements made in the
10-K Letter, except that
A-2
the procedures specified therein shall have been carried out to a
specified date not more than five days prior to the date of such
10-Q Letter;
(b) on the basis of procedures (but not an examination in
accordance with generally accepted auditing standards) consisting
of:
(i) a reading of minutes of all meetings of the
stockholders and directors of the Company and its
subsidiaries and the Pricing Committee of the Company's Board
of Directors and any subsidiary committees from the date of
the latest audited consolidated financial statements to the
specified date referred to in Section 2(a);
(ii) a reading of the unaudited condensed
consolidated financial statements of the Company and its
subsidiaries included or incorporated by reference in the
quarterly report on Form 10-Q dated the date of such 10-Q
Letter;
(iii) inquiries of certain officials of the Company
and its subsidiaries; and
nothing came to their attention that caused them to believe that the
unaudited condensed consolidated financial statements included or
incorporated by reference in such quarterly report on Form 10-Q do
not comply as to form in all material respects with the applicable
accounting requirements of the 1934 Act as it applies to Form 10-Q
and the related published 1934 Act Regulations or that any material
modifications should be made to the unaudited condensed consolidated
financial statements included or incorporated by reference in such
quarterly report for them to be in conformity with generally
accepted accounting principles, except as disclosed in the notes to
such unaudited condensed consolidated financial statements or as
otherwise described in such 10-Q Letter;
(c) in addition to their examinations, inspections,
inquiries and other procedures referred to therein, they have
performed such other procedures, specified by you, not constituting
an audit, as they have agreed to perform and report on with respect
to certain amounts, percentages, numerical data and other financial
information in the Form 10-Q and have compared certain of such
amounts, percentages, numerical data and financial information with,
and have found such items to be in agreement with or derived from,
the detailed accounting records of the Company and its subsidiaries.
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(3) At the Closing Time, a letter dated the Closing Time (the
"Closing Letter"), to the effect that:
(a) they reaffirm as of the date of the Closing Letter
(and as though made on the date of the Closing Letter) all
statements made in the 10-K Letter and in each 10-Q Letter, if any,
except that the procedures specified therein shall have been carried
out to a specified date not more than five days prior to the date of
the Closing Letter; and
(b) based on the procedures set forth in Section 2(b) (but
carried out to the specified date referred to in Section 3(a)),
nothing came to their attention that caused them to believe that,
from the date of the latest balance sheet of the Company and its
subsidiaries included or incorporated by reference in the Prospectus
to such specified date, there were any increases or decreases in
financial statement amounts specified by you as they have agreed to
perform.
