EXHIBIT 1.1
UNDERWRITING AGREEMENT
(Debt Securities)
---------- --, ----
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Corporation, a Pennsylvania corporation (the "Company"), proposes to
issue and sell $ aggregate principal amount of % Notes Due (the "Offered
Securities"). The Offered Securities are to be issued pursuant to the
provisions of the [specify the indenture].
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the aggregate principal amount of the
Offered Securities set forth below opposite their names at a purchase price of
, plus accrued interest, if any, from
to the date of payment and delivery (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Insert syndicate list]
--------------
Total...... ==============
1
The Underwriters 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 , , or at such other time, not
later than 5:00 p.m. (New York time) on , , as shall be designated in writing
by the Underwriters 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 [June __], 1999, and the Prospectus Supplement dated ,
, including the following:
Terms of Offered Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
Conversion Provisions:
Other Terms:
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement 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 [June __], 1999 (the
"Standard Provisions"), a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part
of this Agreement to the same extent as if such provisions had been set forth
in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such
2
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.
3
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [_________________________]
By:___________________________________
Name:
Title:
Accepted:
COMCAST CORPORATION
By:______________________________________
Name:
Title:
4
UNDERWRITING AGREEMENT
(Warrants)
------- --, ----
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Corporation, a Pennsylvania corporation (the "Company"), proposes to
issue and sell [number and title of warrants] Warrants (the "Offered
Securities"). The Offered Securities are to be issued pursuant to the
provisions of a Warrant Agreement (the "Warrant Agreement") dated as of [
] between the Company and [name of Warrant Agent], as Warrant Agent.
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of per
Offered Security, (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Insert syndicate list]
--------------
Total...... ==============
1
The Underwriters 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 , , or at such other time, not
later than 5:00 p.m. (New York time) on , , as shall be designated in writing
by the Underwriters 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 [June __], 1999, and the Prospectus Supplement dated , ,
including the following:
Terms of Offered Securities
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Price to Public:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Form:
Currency in which exercise payments shall be made:
Minimum number of Warrants exercisable by any holder on any day:
Maximum number of Warrants exercisable on any day:
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Exchange on which Warrants are to be listed:
Other Terms:
2
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement 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 [June __], 1999 (the
"Standard Provisions"), a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part
of this Agreement to the same extent as if such provisions had been set forth
in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
3
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [________________________________]
By:__________________________________
Name:
Title:
Accepted:
COMCAST CORPORATION
By: ___________________________
Name:
Title:
4
UNDERWRITING AGREEMENT
(Prepaid Purchase Contracts)
------- --, ----
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Corporation, a Pennsylvania corporation (the "Company"), proposes to
issue and sell [number and title of purchase contracts] Purchase Contracts
(the "Offered Securities"). The Offered Securities are to be issued pursuant
to the provisions of the [Senior Indenture] [Subordinated Indenture].
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of per
Offered Security, (the "Purchase Price").
Number of
Offered Securities
Underwriter To Be Purchased
[Insert syndicate list]
--------------
Total...... ==============
1
The Underwriters 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 , , or at such other time, not
later than 5:00 p.m. (New York time) on , , as shall be designated in writing
by the Underwriters 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 [June __], 1999, and the Prospectus Supplement dated , ,
including the following:
Terms of Offered Securities
Designation of the Series of Purchase Contracts: [Purchase][Sale]
Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property
Form:
Other Terms:
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement 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 [June __], 1999 (the
"Standard Provisions"), a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part
of this Agreement to the same extent as if such provisions had been set forth
in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such
2
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.
3
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Other Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [________________________________]
By:__________________________________
Name:
Title:
Accepted:
COMCAST CORPORATION
By:___________________________________
Name:
Title:
4
UNDERWRITING AGREEMENT
(Units)
------- --, ----
Comcast Corporation
0000 Xxxxxx Xxxxxx
Xxxxxxxxxxxx, Xxxxxxxxxxxx 00000-0000
Dear Sirs:
We (the "Manager") are acting on behalf of the underwriter or
underwriters (including ourselves) named below (such underwriter or
underwriters being herein called the "Underwriters"), and we understand that
Comcast Corporation, a Pennsylvania corporation (the "Company"), proposes to
issue and sell [number and title of units] Units (the "Offered Securities")
consisting of [$ aggregate principal amount of % Notes Due ] [number and title
of Warrants] [number and title of Purchase Contracts]. The Offered Securities
are to be issued pursuant to the provisions of a Unit Agreement (the "Unit
Agreement") dated as of [ ] among the Company, [_________________], as Agent,
and the holders from time to time of the Units. [The Debt Securities included
in the Offered Securities will be issued pursuant to the [specify the
indenture].] [The Warrants included in the Offered Securities will be issued
pursuant to the [specify the warrant agreement.]] [The Purchase Contracts
included in the Offered Securities will be issued pursuant to the Unit
Agreement.]
Subject to the terms and conditions set forth or incorporated by
reference herein, the Company hereby agrees to sell and the Underwriters agree
to purchase, severally and not jointly, the aggregate number of Offered
Securities set forth below opposite their names at a purchase price of , plus
accrued interest, if any, from to the date of payment and delivery (the
"Purchase Price").
1
Number of
Offered Securities
Underwriter To Be Purchased
[Insert syndicate list]
--------------
Total......
==============
The Underwriters 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 , , or at such other time, not
later than 5:00 p.m. (New York time) on , , as shall be designated in writing
by the Underwriters 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 [June __], 1999, and the Prospectus Supplement dated , ,
including the following:
Terms of Debt Securities
Maturity Date:
Interest Rate:
Redemption Provisions:
Interest Payment Dates: _________________,
commencing ____________ (Interest accrues from ____________)
Form and Denomination:
Ranking:
2
Other Terms:
Terms of Warrants
Designation of the Series of Warrants: [Call] [Put] Warrants
Warrant Property:
Aggregate Number of Warrants:
Warrant Exercise Price:
Dates upon which Warrants may be exercised:
Expiration Date:
Currency in which exercise payments shall be made:
[Maximum number of Warrants exercisable on any day:]
Formula for determining Cash Settlement Value:
Exchange Rate (or method of calculation):
Other Terms:
Terms of Purchase Contracts
Designation of the Series of Purchase Contracts: [Purchase][Sale]
Purchase Contracts
Purchase Contract Property:
Aggregate Number of Purchase Contracts:
Price to Public:
Settlement Date:
[Purchase/Sale] Price of Purchase Contract Property
Form:
3
Other Terms:
Capitalized terms used above and not defined herein shall have the
meanings set forth in the Prospectus and Prospectus Supplement 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 [June __], 1999 (the
"Standard Provisions"), a copy of which is attached hereto, are herein
incorporated by reference in their entirety and shall be deemed to be a part
of this Agreement to the same extent as if such provisions had been set forth
in full herein, except that (i) if any term defined in such document is
otherwise defined herein, the definition set forth herein shall control, (ii)
all references in such document to a type of security that is not an Offered
Security shall not be deemed to be a part of this Agreement and (iii) all
references in such document to a type of agreement that has not been entered
into in connection with the transactions contemplated hereby shall not be
deemed to be a part of this Agreement.
4
Please confirm your agreement by having an authorized officer sign a
copy of this Agreement in the space set forth below.
Very truly yours,
[Name of Lead Managers]
On behalf of themselves and the other
Underwriters named herein
By [_________________________________]
By:___________________________________
Name:
Title:
Accepted:
COMCAST CORPORATION
By:________________________________
Name:
Title:
5
COMCAST CORPORATION
UNDERWRITING AGREEMENT
STANDARD PROVISIONS
(DEBT SECURITIES, WARRANTS, PURCHASE CONTRACTS AND UNITS)
[June __], 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
1
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
2
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),
3
(iii) each of the Senior Indenture dated as of June
__, 1999 (the "Senior Indenture") between the Company and
Bank of Montreal Trust Company, as trustee, and the
Subordinated Indenture dated as of June __, 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
4
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,
5
(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,
7
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.
8
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
9
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.
10
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).
11
(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.
