EXHIBIT 1.1
▇▇▇ Communications, Inc.
7.125% Notes due ▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
September 17, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representatives of the
Several Underwriters
c/o ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
▇▇▇ Communications, Inc., a corporation organized under the
laws of Delaware (the "Company"), proposes to sell to the several underwriters
named in Schedule II hereto (the "Underwriters"), for whom you (the
"Representatives") are acting as representatives, the principal amount of its
securities identified in Schedule I hereto (the "Securities"), to be issued
under an indenture (the "Indenture") dated as of June 27, 1995, between the
Company and The Bank of New York, as trustee (the "Trustee"). Any reference
herein to any Registration Statement, any Base Prospectus, any Preliminary
Final Prospectus or the Final Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3, which were filed under the Exchange Act on or before the Effective
Date of the applicable Registration Statement or the issue date of the
applicable Base Prospectus, any Preliminary Final Prospectus or the Final
Prospectus, as the case may be; any reference herein to the terms "amend",
"amendment" or "supplement" with respect to any Registration Statement, any
Base Prospectus, any Preliminary Final Prospectus or the Final Prospectus shall
be deemed to refer to and include the filing of any document under the Exchange
Act after the Effective Date of the applicable Registration Statement or the
issue date of the applicable Base Prospectus, any Preliminary Final Prospectus
or the Final Prospectus, as the case may be, deemed to be incorporated therein
by reference; and all references herein to financial statements and schedules
and other information which is "contained", "included" or "stated" in any
Registration Statement, any Base Prospectus, any Preliminary Final Prospectus
or the Final Prospectus (or other references of like import) shall be deemed to
mean and include all such financial statements and schedules and other
information which is incorporated by reference in the
applicable Registration Statement, the applicable Base Prospectus, any
Preliminary Final Prospectus or the Final Prospectus, as the case may be.
Certain terms used herein are defined in Section 17 hereof.
1. Representations and Warranties. The Company
represents and warrants to, and agrees with, each Underwriter as set forth
below in this Section 1.
(a) Compliance with Registration Requirements. (i) The
Company meets the requirements for use of Form S-3 under the Act and
has prepared and filed with the Commission registration statements
(the file numbers of which are set forth in Schedule I hereto) on Form
S-3, including related base prospectuses, for registration under the
Act of the offering and sale of the Securities. The Company may have
filed one or more amendments thereto, including a Preliminary Final
Prospectus, each of which has previously been furnished to you. The
Company will next file with the Commission one of the following: (1)
after the Effective Dates of such registration statement, a final
prospectus supplement relating to the Securities in accordance with
Rules 430A and 424(b), (2) prior to the Effective Dates of such
registration statements, an amendment to such registration statement
(including the form of final prospectus supplement) or (3) a final
prospectus in accordance with Rules 415 and 424(b). In the case of
clause (1), the Company has included in such registration statements,
as amended at the Effective Dates, all information (other than Rule
430A Information) required by the Act and the rules thereunder to be
included in such registration statements and the Final Prospectus. As
filed, such final prospectus supplement or such amendment and form of
final prospectus supplement shall contain all Rule 430A Information,
together with all other such required information, and, except to the
extent the Representatives shall agree in writing to a modification,
shall be in all substantive respects in the form furnished to you
prior to the Execution Time or, to the extent not completed at the
Execution Time, shall contain only such specific additional
information and other changes (beyond that contained in the Base
Prospectuses and any Preliminary Final Prospectus) as the Company has
advised you, prior to the Execution Time, will be included or made
therein.
(ii) On the Effective Dates, the Registration Statements
did or will, and when the Final Prospectus is first filed (if
required) in accordance with Rule 424(b) and on the Closing Date (as
defined herein), the Final Prospectus (and any supplement thereto)
will, comply in all material respects with the applicable requirements
of the Act, the Exchange Act and the Trust Indenture Act and the
respective rules thereunder; on the Effective Dates and at the
Execution Time, the Registration Statements did not or will not
contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to
make the statements therein not misleading; on the Effective Dates and
on the Closing Date, the Indenture did or will comply in all material
respects with the applicable requirements of the Trust Indenture Act
and the rules thereunder; and, on the Effective Dates, the Final
Prospectus, if not filed pursuant to Rule 424(b), will not, and on the
date of any filing pursuant to Rule 424(b) and on the Closing Date,
the Final Prospectus (together with any supplement thereto) will not,
include any 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 the Company makes no
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representations or warranties as to (i) that part of each of the
Registration Statements which shall constitute the Statement of
Eligibility and Qualification (Form T-1) under the Trust Indenture Act
of the Trustee or (ii) the information contained in or omitted from
the Registration Statements or the Final Prospectus (or any supplement
thereto) in reliance upon and in conformity with information furnished
in writing to the Company by or on behalf of any Underwriter through
the Representatives specifically for inclusion in the Registration
Statement or the Final Prospectus (or any supplement thereto).
Each Preliminary Final Prospectus and the Base Prospectuses
filed as part of the Registration Statements as originally filed or as
part of any amendment thereto, or filed pursuant to Rule 424 under the
Act, complied when so filed in all material respects with the Act, and
each Preliminary Final Prospectus and the Final 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 its Electronic
Data Gathering, Analysis and Retrieval system, except to the extent
permitted by Regulation S-T.
(b) Incorporated Documents. The documents incorporated
or deemed to be incorporated by reference in the Registration
Statements and the Final Prospectus, when they became effective or at
the time they were or hereafter are filed with the Commission,
complied and will comply in all material respects with the
requirements of the Act and the Exchange Act, as applicable, and, when
read together with the other information in the Final Prospectus, at
the time the Registration Statement became effective, at the time the
Final Prospectus was issued and the Closing Date, did not and will not
contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading.
(c) Independent Accountants. The accountants who
certified the financial statements and supporting schedules of the
Company and its subsidiaries and delivered their report with respect
to the audited consolidated financial statements and schedules, if
any, included in the Final Prospectus and the Registration Statements
are independent public accountants with respect to the Company and its
subsidiaries within the meaning of Regulation S-X under the Act.
(d) Financial Statements. The financial statements of
the Company included in the Registration Statements and the Final
Prospectus, together with the related schedules and notes, present
fairly the financial position of the Company and its consolidated
subsidiaries at the dates indicated and the statement of operations,
stockholders' equity and cash flows of the Company and its
consolidated subsidiaries for the periods specified; said financial
statements comply as to form with the applicable accounting
requirements of the Act and have been prepared in conformity with
generally accepted accounting principles ("GAAP") applied on a
consistent basis throughout the periods involved. The supporting
schedules, if any, included in the Registration Statements and the
Final Prospectus comply as to form with the applicable accounting
requirements of the Act and present fairly in accordance with GAAP the
information required to be stated therein. The selected financial data
included in the Registration Statements and the Final Prospectus
present fairly the information shown therein and
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have been compiled on a basis consistent with that of the audited
financial statements included in the Registration Statements and the
Final Prospectus.
(e) No Material Adverse Change in Business. Since the
respective dates as of which information is given in the Registration
Statements and the Final Prospectus, except as otherwise stated
therein, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business
affairs or business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the ordinary
course of business (a "Material Adverse Effect"), (B) there have been
no transactions entered into by the Company or any of its
subsidiaries, other than those in the ordinary course of business,
which are material with respect to the Company and its subsidiaries
considered as one enterprise and (C) there has been no dividend or
distribution of any kind declared, paid or made by the Company on any
class of its capital stock.
(f) Good Standing of the Company. The Company has been
duly organized and is validly existing as a corporation in good
standing under the laws of the State of Delaware and has corporate
power and authority to own, lease and operate its properties and to
conduct its business as described in the Final Prospectus and to enter
into and perform its obligations under this Agreement; and the Company
is duly qualified as a foreign corporation to transact business and is
in good standing in each other jurisdiction in which such
qualification is required, whether by reason of the ownership or
leasing of property or the conduct of business, except where the
failure so to qualify or to be in good standing would not result in a
Material Adverse Effect.
(g) Good Standing of Subsidiaries. Each "significant
subsidiary" of the Company (as such term is defined in Rule 1-02 of
Regulation S-X) (each a "Subsidiary" and, collectively, the
"Subsidiaries") has been duly organized and is validly existing as a
corporation in good standing under the laws of the jurisdiction of its
incorporation, has corporate or other power and authority to own,
lease and operate its properties and to conduct its business as
described in the Final Prospectus and is duly qualified as a foreign
corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by
reason of the ownership or leasing of property or the conduct of
business, except where the failure so to qualify or to be in good
standing would not result in a Material Adverse Effect; except as
otherwise disclosed in the Final Prospectus, all of the issued and
outstanding capital stock of each such Subsidiary is owned by the
Company, directly or through subsidiaries, has been duly authorized
and validly issued, is fully paid and non-assessable and is owned free
and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity; and none of the outstanding shares of
capital stock of any Subsidiary was issued in violation of the
preemptive or similar rights of any securityholder of such Subsidiary.
The only subsidiaries of the Company are (a) the subsidiaries listed
on Schedule III hereto and (b) certain other subsidiaries which,
considered in the aggregate as a single subsidiary, do not constitute
a "significant subsidiary" as defined in Rule 1-02 of Regulation S-X.
(h) Capitalization. The shares of outstanding capital
stock of the Company have been duly authorized and validly issued and
are fully paid and non-assessable; and
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none of the outstanding shares of capital stock of the Company was
issued in violation of the preemptive or other similar rights of any
securityholder of the Company.
(i) Authorization of Agreement. This Agreement has been
duly authorized, executed and delivered by the Company.
(j) Authorization of the Indenture. The Indenture has
been duly authorized, executed and delivered by the Company and,
assuming due authorization, execution and delivery by the Trustee,
constitutes a valid and binding agreement of the Company, enforceable
against the Company in accordance with its terms, except as the
enforcement thereof may be limited by bankruptcy, insolvency
(including, without limitation, all laws relating to fraudulent
transfers), reorganization, moratorium or similar laws affecting
enforcement of creditors' rights generally and except as enforcement
thereof is subject to general principles of equity (regardless of
whether enforcement is considered in a proceeding in equity or at
law). The Indenture has been duly qualified under the Trust Indenture
Act.
(k) Authorization of Securities. The Securities have
been duly authorized by the Company for issuance and sale and, on the
Closing Date, will have been duly executed by the Company and, when
authenticated, issued and delivered in the manner provided for in the
Indenture and delivered against payment of the purchase price therefor
as provided in this Agreement, will constitute valid and binding
obligations of the Company, enforceable against the Company in
accordance with their terms, except as the enforcement thereof may be
limited by bankruptcy, insolvency (including, without limitation, all
laws relating to fraudulent transfers), reorganization, moratorium or
similar laws affecting enforcement of creditors' rights generally and
except as enforcement thereof is subject to general principles of
equity (regardless of whether enforcement is considered in a
proceeding in equity or at law). The Securities will be in the form
contemplated by, and each registered holder thereof will be entitled
to the benefits of, the Indenture.
(l) Description of the Securities and the Indenture. The
Securities and the Indenture, as of the date hereof and as of the
Closing Date, conform and will conform, as applicable, in all material
respects to the respective statements relating thereto contained in
the Final Prospectus, and the Indenture is in the form filed or
incorporated by reference, as the case may be, as an exhibit to each
of the Registration Statements.
(m) Absence of Defaults and Conflicts. Neither the
Company nor any of its subsidiaries is in violation of its charter or
by-laws or other constitutive documents or in default in the
performance or observance of any obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, deed of
trust, loan or credit agreement, note, lease or other agreement or
instrument to which the Company or any of its subsidiaries is a party
or by which it or any of them may be bound, or to which any of the
property or assets of the Company or any of its subsidiaries is
subject (collectively, "Agreements and Instruments") except for such
defaults that would not result in a Material Adverse Effect; and the
execution, delivery and performance by the Company of this Agreement,
the Indenture and the Securities and the consummation of the
transactions contemplated in this Agreement and in the Registration
Statements
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(including the issuance and sale of the Securities and the use of the
proceeds from the sale of the Securities as described in the Final
Prospectus under the caption "Use of Proceeds") and compliance by the
Company with its obligations under this Agreement, the Indenture and
the Securities do not and will not, whether with or without the giving
of notice or passage of time or both, conflict with or constitute a
breach of, or default or Repayment Event (as defined below) under, or
result in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, the Agreements and Instruments (except for
such conflicts, breaches or defaults or liens, charges or encumbrances
that would not result in a Material Adverse Effect), nor will such
action result in any violation of the provisions of the charter or
by-laws or other constitutive documents of the Company or any of its
subsidiaries or any applicable law, statute, rule, regulation,
judgment, order, writ or decree of any government, government
instrumentality or court, domestic or foreign, having jurisdiction
over the Company or any of its subsidiaries or any of their assets,
properties or operations. As used herein, a "Repayment Event" means
any event or condition which gives the holder of any note, debenture
or other evidence of indebtedness (or any person acting on such
holder's behalf) the right to require the repurchase, redemption or
repayment of all or a portion of such indebtedness by the Company or
any of its subsidiaries.
(n) Absence of Labor Dispute. No labor dispute with the
employees of the Company or any of its subsidiaries exists or, to the
knowledge of the Company, is imminent which, individually or in the
aggregate, may reasonably be expected to result in a Material Adverse
Effect.
(o) Absence of Proceedings. There is no action, suit,
proceeding, inquiry or investigation before or brought by any court or
governmental agency or body, domestic or foreign, now pending, or, to
the knowledge of the Company, threatened, against or affecting the
Company or any of its subsidiaries, which is required to be disclosed
in the Registration Statements (other than as disclosed therein), or
which, individually or in the aggregate, might reasonably be expected
to result in a Material Adverse Effect, or which, individually or in
the aggregate, might reasonably be expected to materially and
adversely affect the properties or assets thereof or the consummation
of the transactions contemplated in this Agreement or the performance
by the Company of its obligations hereunder; the aggregate of all
pending legal or governmental proceedings to which the Company or any
of its subsidiaries is a party or of which any of their respective
property or assets is the subject which are not described in the
Registration Statements, including ordinary routine litigation
incidental to the business, could not reasonably be expected to result
in a Material Adverse Effect.
(p) Accuracy of Exhibits. There are no contracts or
documents which are required to be described in the Registration
Statements, the Final Prospectus or the documents incorporated by
reference therein or to be filed as exhibits thereto which have not
been so described and filed as required.
(q) Possession of Intellectual Property. Except as
disclosed in the Final Prospectus, the Company and its subsidiaries
own or possess, or can acquire on reasonable terms, adequate patents,
patent rights, licenses, inventions, copyrights, know-
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how (including trade secrets and other patented and/or unpatentable
proprietary or confidential information, systems or procedures),
trademarks, service marks, trade names or other intellectual property
(collectively, "Intellectual Property") necessary to carry on the
business now operated by them, other than those the absence of which
would not have a Material Adverse Effect, and neither the Company nor
any of its subsidiaries has received any notice or is otherwise aware
of any infringement of or conflict with asserted rights of others with
respect to any Intellectual Property or of any facts or circumstances
which would render any Intellectual Property invalid or inadequate to
protect the interest of the Company or any of its subsidiaries
therein, and which infringement or conflict (if the subject of any
unfavorable decision, ruling or finding) or invalidity or inadequacy,
singly or in the aggregate, would result in a Material Adverse Effect.
(r) Absence of Further Requirements. No filing with, or
authorization, approval, consent, license, order, registration,
qualification or decree of, any court or governmental authority or
agency is necessary or required for the performance by the Company of
its obligations hereunder, in connection with the offering, issuance
or sale of the Securities under this Agreement or the consummation of
the transactions contemplated by this Agreement or for the due
execution, delivery or performance of the Indenture by the Company,
except such as have been already obtained or as may be required under
the Act or state securities laws, the laws of a foreign jurisdiction
or the by-laws and rules of the National Association of Securities
Dealers, Inc.
(s) Possession of Licenses and Permits. The Company and
its subsidiaries possess such permits, licenses, approvals, consents
and other authorizations (collectively, "Governmental Licenses")
issued by the appropriate federal, state, local or foreign regulatory
agencies or bodies necessary to conduct the business now operated by
them, other than those the absence of which would not have a Material
Adverse Effect; the Company and its subsidiaries are in compliance
with the terms and conditions of all such Governmental Licenses,
except where the failure so to comply would not, singly or in the
aggregate, have a Material Adverse Effect; all of the Governmental
Licenses are valid and in full force and effect, except when the
invalidity of such Governmental Licenses or the failure of such
Governmental Licenses to be in full force and effect would not have a
Material Adverse Effect; and neither the Company nor any of its
subsidiaries has received any notice of proceedings relating to the
revocation or modification of any such Governmental Licenses which,
singly or in the aggregate, if the subject of an unfavorable decision,
ruling or finding, would result in a Material Adverse Effect.
(t) Title to Property. The Company and its subsidiaries
have good and marketable title to all material real property owned by
the Company and its subsidiaries and good title to all other
properties owned by them, in each case, free and clear of all
mortgages, pledges, liens, security interests, claims, restrictions or
encumbrances of any kind except such as (a) are described in the Final
Prospectus or (b) do not, singly or in the aggregate, materially
affect the value of such property and do not interfere with the use
made and proposed to be made of such property by the Company or any of
its subsidiaries; and all of the leases and subleases material to the
business of the Company and its subsidiaries, considered as one
enterprise, and under which the Company or any of its subsidiaries
holds properties described in the Final Prospectus, are in full force
and
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effect, and neither the Company nor any subsidiary has any notice of
any material claim of any sort that has been asserted by anyone
adverse to the rights of the Company or any subsidiary under any of
the leases or subleases mentioned above, or any material claim
affecting or questioning the rights of the Company or such subsidiary
to the continued possession of the leased or subleased premises under
any such lease or sublease.
(u) Investment Company Act. The Company is not, and upon
the issuance and sale of the Securities as herein contemplated and the
application of the net proceeds therefrom as described in the Final
Prospectus will not be, an "investment company" as such term is
defined in the Investment Company Act of 1940, as amended (the
"Investment Company Act").
(v) Environmental Laws. Except as described in the
Registration Statements and except as would not, singly or in the
aggregate, result in a Material Adverse Effect, (A) neither the
Company nor any of its subsidiaries is in violation of any federal,
state, local or foreign statute, law, rule, regulation, ordinance,
code, policy or rule of common law or any judicial or administrative
interpretation thereof, including any judicial or administrative
order, consent, decree or judgment, relating to pollution or
protection of human health, the environment (including, without
limitation, ambient air, surface water, groundwater, land surface or
subsurface strata) or wildlife, including, without limitation, laws
and regulations relating to the release or threatened release of
chemicals, pollutants, contaminants, wastes, toxic substances,
hazardous substances, petroleum or petroleum products (collectively,
"Hazardous Materials") or to the manufacture, processing,
distribution, use, treatment, storage, disposal, transport or handling
of Hazardous Materials (collectively, "Environmental Laws"), (B) the
Company and its subsidiaries have all permits, authorizations and
approvals required under any applicable Environmental Laws and are
each in compliance with their requirements, (C) there are no pending
or, to the Company's knowledge, threatened administrative, regulatory
or judicial actions, suits, demands, demand letters, claims, liens,
notices of noncompliance or violation, investigation or proceedings
relating to any Environmental Law against the Company or any of its
subsidiaries and (D) there are no events or circumstances that might
reasonably be expected to form the basis of an order for clean-up or
remediation, or an action, suit or proceeding by any private party or
governmental body or agency, against or affecting the Company or any
of its subsidiaries relating to Hazardous Materials or any
Environmental Laws.
Any certificate signed by any officer of the Company and
delivered to the Representatives or counsel for the Underwriters in connection
with the offering of the Securities shall be deemed a representation and
warranty by the Company, as to matters covered thereby, to each Underwriter.
2. Purchase and Sale. Subject to the terms and
conditions and in reliance upon the representations and warranties 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 set forth in Schedule I hereto the principal amount of the
Securities set forth opposite such Underwriter's name in Schedule II hereto.
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3. Delivery and Payment. Delivery of and payment for
the Securities shall be made on the date and at the time specified in Schedule
I hereto or at such time on such later date not more than three Business Days
after the foregoing date as the Representatives shall designate, which date and
time may be postponed by agreement between the Representatives and the Company
or as provided in Section 9 hereof (such date and time of delivery and payment
for the Securities being herein called the "Closing Date"). Delivery of the
Securities shall be made to the Representatives for the respective accounts of
the several Underwriters against payment by the several Underwriters through
the Representatives of the purchase price thereof to or upon the order of the
Company by wire transfer payable in same-day funds to an account specified by
the Company. Delivery of the Securities shall be made through the facilities of
The Depository Trust Company unless the Representatives shall otherwise
instruct.
4. Offering by Underwriters. It is understood that the
several Underwriters propose to offer the Securities for sale to the public as
set forth in the Final Prospectus.
5. Agreements. The Company agrees with the several
Underwriters that:
(a) The Company will use its best efforts to cause the
Registration Statements, if not effective at the Execution Time, and
any amendment thereof, to become effective. Prior to the termination
of the offering of the Securities, the Company will not file any
amendment of the Registration Statements or supplement (including the
Final Prospectus or any Preliminary Final Prospectus) to the Base
Prospectuses or any Rule 462(b) Registration Statement unless the
Company has furnished you a copy for your review prior to filing and
will not file any such proposed amendment or supplement to which you
reasonably object. Subject to the foregoing sentence, if any of the
Registration Statements has become or becomes effective pursuant to
Rule 430A, or filing of the Final Prospectus is otherwise required
under Rule 424(b), the Company will cause the Final Prospectus,
properly completed, and any supplement thereto to be filed with the
Commission pursuant to the applicable paragraph of Rule 424(b) within
the time period prescribed and will provide evidence satisfactory to
the Representatives of such timely filing. The Company will promptly
advise the Representatives (1) when the Registration Statements, if
not effective at the Execution Time, shall have become effective, (2)
when the Final Prospectus, and any supplement thereto, shall have been
filed (if required) with the Commission pursuant to Rule 424(b) or
when any Rule 462(b) Registration Statement shall have been filed with
the Commission, (3) when, prior to termination of the offering of the
Securities, any amendment to the Registration Statements shall have
been filed or become effective, (4) of any request by the Commission
or its staff for any amendment of any of the Registration Statements,
or any Rule 462(b) Registration Statement, or for any supplement to
the Final Prospectus or for any additional information, (5) of the
issuance by the Commission of any stop order suspending the
effectiveness of any of the Registration Statements or the institution
or threatening of any proceeding for that purpose and (6) of the
receipt by the Company of any notification with respect to the
suspension of the qualification of the Securities for sale in any
jurisdiction within the United States or the institution or
threatening of any proceeding for such purpose. The Company will use
its best efforts to prevent the issuance of any such stop order or the
suspension of any such qualification and, if issued, to obtain as soon
as possible the withdrawal thereof.
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(b) If, at any time when a prospectus relating to the
Securities is required to be delivered under the Act, any event occurs
as a result of which the Final Prospectus as then supplemented would
include any untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein in the light of
the circumstances under which they were made not misleading, or if it
shall be necessary to amend the Registration Statements or supplement
the Final Prospectus to comply with the Act or the Exchange Act, the
Company promptly will (1) notify the Representatives of such event,
(2) prepare and file with the Commission, subject to the second
sentence of paragraph (a) of this Section 5, an amendment or
supplement which will correct such statement or omission or effect
such compliance and (3) supply any supplemented Final Prospectus to
you in such quantities as you may reasonably request.
(c) The Company will timely file such reports pursuant
to the Exchange Act in order to make generally available to its
security holders and to the Representatives an earnings statement or
statements of the Company and its subsidiaries which will satisfy the
provisions of Section 11(a) of the Act and Rule 158 under the Act.
(d) The Company will furnish to the Representatives and
counsel for the Underwriters, without charge, so long as delivery of a
prospectus by an Underwriter or dealer may be required by the Act, as
many copies of any Preliminary Final Prospectus and the Final
Prospectus and any supplement thereto as the Representatives may
reasonably request. The Company will pay the expenses of printing or
other production of all documents relating to the offering.
(e) The Company will arrange, if necessary, for the
qualification of the Securities for sale under the laws of such
jurisdictions within the United States as the Representatives may
designate, will maintain such qualifications in effect so long as
required for the distribution of the Securities and will pay any fee
of the National Association of Securities Dealers, Inc., in connection
with its review of the offering; provided that in no event shall the
Company be obligated to qualify to do business in any jurisdiction
where it is not now so qualified or to take any action that would
subject it to service of process in suits, other than those arising
out of the offering or sale of the Securities, in any jurisdiction
where it is not now so subject.
(f) The Company will not, without the prior written
consent of the Representatives, offer, sell, contract to sell, pledge,
or otherwise dispose of, (or enter into any transaction which is
designed to, or might reasonably be expected to, result in the
disposition (whether by actual disposition or effective economic
disposition due to cash settlement or otherwise) by the Company or any
affiliate of the Company or any person in privity with the Company or
any affiliate of the Company) directly or indirectly, including the
filing (or participation in the filing) of a registration statement
with the Commission in respect of, or establish or increase a put
equivalent position or liquidate or decrease a call equivalent
position within the meaning of Section 16 of the Exchange Act, any
debt securities substantially similar to the Securities issued or
guaranteed by the Company (other than the Securities) or publicly
announce an intention to effect any such transaction, until the
Business Day set forth on Schedule I hereto.
10
(g) The Company will not take, directly or indirectly,
any action designed to or that would constitute or that might
reasonably be expected to cause or result in, under the Exchange Act
or otherwise, stabilization (other than through the Underwriters) or
manipulation of the price of any security of the Company to facilitate
the sale or resale of the Securities.
6. Conditions to the Obligations of the Underwriters.
The obligations of the Underwriters to purchase the Securities shall be subject
to the accuracy of the representations and warranties on the part of the
Company contained herein as of the Execution Time and the Closing Date, to the
accuracy of the statements of the Company made in any certificates pursuant to
the provisions hereof, to the performance by the Company of its obligations
hereunder and to the following additional conditions:
(a) If the Registration Statements have not become
effective prior to the Execution Time, unless the Representatives
agree in writing to a later time, the Registration Statements will
become effective not later than (i) 6:00 PM New York City time, on the
date of determination of the public offering price, if such
determination occurred at or prior to 3:00 PM New York City time on
such date or (ii) 9:30 AM on the Business Day following the day on
which the public offering price was determined, if such determination
occurred after 3:00 PM New York City time on such date; if filing of
the Final Prospectus, or any supplement thereto, is required pursuant
to Rule 424(b), the Final Prospectus, and any such supplement, will be
filed in the manner and within the time period required by Rule
424(b); and no stop order(s) suspending the effectiveness of the
Registration Statements shall have been issued and no proceedings for
that purpose shall have been instituted or threatened.
(b) The Company shall have requested and caused Dow,
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, PLLC, counsel for the Company, to have furnished
to the Representatives their opinion, dated the Closing Date and
addressed to the Representatives, to the effect that:
(i) The Company is existing as a corporation in
good standing under the laws of the State of Delaware, has
the corporate power and authority to own its properties and
to conduct its business as described in the Final Prospectus
and to enter into and perform its obligations under each of
this Agreement, the Indenture and the Securities
(collectively, the "Operative Agreements") and, based solely
on a review of certificates from the appropriate governmental
authorities in Georgia, is duly qualified to transact
business and is in good standing in Georgia;
(ii) Each Subsidiary of the Company is an
existing corporation in good standing under the laws of the
jurisdiction of its incorporation, has the corporate power
and authority to own its property and to conduct its business
as described in the Final Prospectus;
(iii) The Indenture has been duly authorized,
executed and delivered, has been duly qualified under the
Trust Indenture Act, and constitutes a legal, valid and
binding instrument enforceable against the Company in
accordance with its terms (subject, as to enforcement of
remedies, to applicable bankruptcy,
11
reorganization, insolvency, moratorium or other laws
affecting creditors' rights generally from time to time in
effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness,
good faith and fair dealing, regardless of whether considered
in a proceeding in equity or at law); and the Securities have
been duly authorized and, when executed and authenticated in
accordance with the provisions of the Indenture and delivered
to and paid for by the Underwriters pursuant to this
Agreement, will constitute legal, valid and binding
obligations of the Company entitled to the benefits of the
Indenture;
(iv) Other than as set forth in the Final
Prospectus, to such counsel's knowledge there is not pending
or threatened in writing any action, suit, proceeding,
inquiry or investigation, governmental or otherwise, to which
the Company or any subsidiary is a party which might
reasonably be expected to have a Material Adverse Effect, or
that seeks to restrain, enjoin, prevent the consummation of,
or otherwise challenge the issuance or sale of the Securities
pursuant to this Agreement or the application of the proceeds
therefrom;
(v) The Registration Statements have become
effective under the Act; any required filing of the Base
Prospectuses and the Final Prospectus pursuant to Rule 424(b)
has been made in the manner and within the time period
required by Rule 424(b); to the knowledge of such counsel, no
stop order(s) suspending the effectiveness of the
Registration Statements has been issued, no proceedings for
that purpose have been instituted or threatened, and the
Registration Statements and the Final Prospectus (other than
the financial statements and schedules and other financial
information and statistical data included or incorporated by
reference therein or omitted therefrom and the Form T-1, as
to which such counsel need express no opinion) comply as to
form in all material respects with the applicable
requirements of the Act, the Exchange Act and the Trust
Indenture Act and the respective rules thereunder; and such
counsel has no reason to believe that on the Effective Dates
or the dates that each of the Registration Statements was
last deemed amended the Registration Statements 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 Final
Prospectus as of its date and on the Closing Date included or
includes any untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the
statements therein, in the light of the circumstances under
which they were made, not misleading (in each case, other
than the financial statements and schedules and other
financial information and statistical data included or
incorporated by reference therein or omitted therefrom and
the Form T-1, as to which such counsel need express no
opinion);
(vi) This Agreement has been duly authorized,
executed and delivered by the Company;
(vii) The information (A) included or
incorporated by reference in the Final Prospectus under the
captions "Description of Notes," "Description of the Debt
Securities" and "Certain United States Federal Tax
Considerations," (B) in
12
each of the Registration Statements under Item 15, and (C) in
the Company's Form 10-K for the year ended December 31, 2001
under the caption "Business--Competition" and "--Legislation
and Regulation" to the extent that it constitutes matters of
U.S. Federal laws, rules and regulations referred to therein,
legal conclusions or summaries of the provisions of the
Company's certificate of incorporation and by-laws or the
Operative Agreements referred to therein has been reviewed by
such counsel and accurately describes in all material
respects the matters referred to therein;
(viii) The statements in the Company's Form 10-K
for the year ended December 31, 2001, as updated and amended
by the Company's Forms 10-Q for the quarters ended March 31,
2002 and June 30, 2002 and its Form 8-K, dated July 10, 2002
and filed September 17, 2002, under the caption "Legal
Proceedings," to the extent that such statements constitute
summaries of legal proceedings, have been reviewed by such
counsel and, to such counsel's knowledge, accurately describe
such legal proceedings in all respects material to the
business of the Company as described in the Final Prospectus;
provided, however, that such counsel may state that it has
not been retained to represent the Company or any subsidiary
or affiliate of the Company in connection with any such legal
proceedings;
(ix) To such counsel's knowledge, no consent,
approval, authorization or order of, or qualification with,
any governmental agency or body is required under the laws of
the United States, the laws of the State of New York and the
Delaware General Corporation Law (collectively, "Applicable
Law") for the execution and delivery by the Company of the
Operative Agreements, or the consummation by the Company (as
if consummation occurred on the date of such opinion) of the
transactions contemplated thereby, except as has already been
acquired or as may be required under state securities or
"Blue Sky" laws;
(x) The issuance of the Securities and the
execution, delivery and performance (as if such performance
occurred on the date of such opinion) by the Company of the
Operative Agreements and consummation (as if consummation
occurred on the date of such opinion) of the transactions
contemplated therein do not, whether with or without the
giving of notice or lapse of time or both, conflict with or
constitute a breach of, or default or Repayment Event (as
defined in Section 1(m) of this Agreement) under, or result
in the creation or imposition of any lien, charge or
encumbrance upon any property or assets of the Company or any
Subsidiary pursuant to, any Agreements and Instruments
(except for such conflicts, breaches or defaults or liens,
charges or encumbrances that the Company has advised such
counsel would not, individually or in the aggregate, have a
Material Adverse Effect), nor will such action result in any
violation of the provisions of the certificate of
incorporation or by-laws or other constitutive documents of
the Company or any Subsidiary, or, to such counsel's
knowledge, any Applicable Law or to such counsel's knowledge,
any judgment, order, writ or decree of any government,
government instrumentality or court, domestic or
13
foreign, having jurisdiction over the Company or any
Subsidiary and specifically applicable to the Company and any
Subsidiary;
(xi) To such counsel's knowledge and other than
as set forth in the Prospectus, the Company is not, nor with
the giving of notice or lapse of time or both would the
Company be, in violation of any judgment, injunction, order
or decree of the FCC other than those that the Company has
advised such counsel, would not, individually or in the
aggregate, have a Material Adverse Effect and other than
judgments, injunctions, orders or decrees of the FCC
generally applicable to the cable television industry;
(xii) The execution, delivery and performance (as
if such performance occurred on the date of such opinion) by
the Company of this Agreement does not violate the
Communications Act or any rules or the regulations thereunder
binding on the Company or its Subsidiaries or any order,
writ, judgment, injunction, decree or award of the FCC
binding on the Company or its Subsidiaries of which such
counsel has knowledge; and
(xiii) The Company is not and, after giving effect
to the offering and sale of the Securities and the
application of the proceeds thereof as described in the Final
Prospectus, will not be an "investment company" as defined in
the Investment Company Act.
In rendering such opinion, such counsel may rely (A) as to
matters involving the application of laws of any jurisdiction other than the
laws of the United States, the laws of the State of New York and the Delaware
General Corporation Law to the extent they deem proper and specified in such
opinion, upon the opinion of other counsel of good standing whom they believe
to be reliable and who are satisfactory to counsel for the Underwriters and (B)
as to matters of fact, to the extent they deem proper, on certificates of
responsible officers of the Company and public officials. References to the
Final Prospectus in this paragraph (b) include any supplements thereto at the
Closing Date.
(c) The Representatives shall have received from
Shearman & Sterling, counsel for the Underwriters, such opinion or
opinions, dated the Closing Date and addressed to the Representatives,
with respect to the issuance and sale of the Securities, the
Indenture, the Registration Statements, the Final Prospectus (together
with any supplement thereto) and other related matters as the
Representatives may reasonably require, and the Company shall have
furnished to such counsel such documents as they request for the
purpose of enabling them to pass upon such matters.
(d) The Company shall have furnished to the
Representatives a certificate of the Company, signed by the Chairman
of the Board, the President or any Executive or Senior Vice President
or the Treasurer, and the principal financial or accounting officer of
the Company, dated the Closing Date, to the effect that the signers of
such certificate have carefully examined the Registration Statements,
the Final Prospectus, any supplements to the Final Prospectus and this
Agreement and that:
14
(i) the representations and warranties of the
Company in this Agreement are true and correct on and as of
the Closing Date with the same effect as if made on the
Closing Date and the Company has complied with all the
agreements and satisfied all the conditions on its part to be
performed or satisfied at or prior to the Closing Date;
(ii) no stop order(s) suspending the
effectiveness of the Registration Statements has been issued
and no proceedings for that purpose have been instituted or,
to the Company's knowledge, threatened; and
(iii) since the date of the most recent financial
statements included or incorporated by reference in the Final
Prospectus (exclusive of any supplement thereto), there has
been no material adverse change in the condition, financial
or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries
considered as one enterprise, whether or not arising in the
ordinary course of business, except as set forth in or
contemplated in the Final Prospectus (exclusive of any
supplement thereto).
(e) At the Execution Time and at the Closing Date, the
Company shall have requested and caused Deloitte & Touche LLP to
furnish to the Representatives letters (the letter delivered at the
Closing Date may refer to the letter previously delivered at the
Execution Time to the Representatives), dated respectively as of the
Execution Time and as of the Closing Date, in form and substance
satisfactory to the Representatives, containing statements and
information of the type ordinary included in accountants' "comfort
letters" to underwriters with respect to the financial statements and
certain financial information of the Company contained in the Final
Prospectus.
(f) Subsequent to the Execution Time or, if earlier, the
dates as of which information is given in the Registration Statements
(exclusive of any amendment thereof) and the Final Prospectus
(exclusive of any supplement thereto), there shall not have been any
material adverse change in the condition, financial or otherwise, or
in the earnings, business affairs or business prospects of the Company
and its subsidiaries considered as one enterprise, whether or not
arising from transactions in the ordinary course of business.
(g) On the Closing Date the Securities shall be rated at
least Baa2 by ▇▇▇▇▇'▇ Investors Service Inc. and BBB by Standard &
Poor's Ratings Service, and the Company shall have delivered to the
Representatives a letter from each such rating agency, or other
evidence satisfactory to the Representative, confirming that the
Securities have such ratings; and subsequent to the Execution Time,
there shall not have been any decrease in the rating of any of the
Company's other debt securities by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Act) or any notice given of any intended or potential
decrease in any such rating or of a possible change in any such rating
that does not indicate the direction of the possible change.
(h) Prior to the Closing Date, the Company shall have
furnished to the Representatives such further information,
certificates and documents as the Representatives may reasonably
request.
15
If any of the conditions specified in this Section 6 shall
not have been fulfilled in all material respects when and as provided in this
Agreement, or if any of the opinions and certificates mentioned above or
elsewhere in this Agreement shall not be in all material respects reasonably
satisfactory in form and substance to the Representatives and counsel for the
Underwriters, this Agreement and all obligations of the Underwriters hereunder
may be canceled at, or at any time prior to, the Closing Date by the
Representatives. Notice of such cancellation shall be given to the Company in
writing or by telephone or facsimile confirmed in writing.
The documents required to be delivered by this Section 6
shall be delivered at the office of Shearman & Sterling, counsel for the
Underwriters, at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇, on the Closing Date.
7. Reimbursement of Underwriters' Expenses. If the sale
of the Securities provided for herein is not consummated because any condition
to the obligations of the Underwriters set forth in Section 6 hereof is not
satisfied, because of any termination pursuant to Section 10 hereof or because
of any refusal, inability or failure on the part of the Company to perform any
agreement herein or comply with any provision hereof other than by reason of a
default by any of the Underwriters, the Company will reimburse the Underwriters
on demand for all out-of-pocket expenses (including reasonable fees and
disbursements of counsel) that shall have been incurred by them in connection
with the proposed purchase and sale of the Securities.
8. Indemnification and Contribution. (a) The Company
agrees to indemnify and hold harmless each Underwriter, the directors,
officers, employees and agents of each Underwriter and each person who controls
any Underwriter within the meaning of either the Act or the Exchange Act
against any and all losses, claims, damages or liabilities, joint or several,
to which they or any of them may become subject under the Act, the Exchange Act
or other Federal or state statutory law or regulation, at common law or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
in respect thereof) arise out of or are based upon any untrue statement or
alleged untrue statement of a material fact contained in the Registration
Statements or in the Base Prospectuses, any Preliminary Final Prospectus or the
Final Prospectus, or in any amendment or supplement to the Base Prospectuses,
any Preliminary Final Prospectus or the Final Prospectus, or arise out of or
are based upon the omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, and agrees to reimburse each such indemnified party, as
incurred, for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the Company will not be liable in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon any such untrue statement or alleged untrue
statement or omission or alleged omission made therein in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
any Underwriter through the Representatives specifically for inclusion therein
and provided, further, that as to any Preliminary Final Prospectus, this
indemnity agreement shall not inure to the benefit of any Underwriter or any
person controlling such Underwriter on account of any loss, claim, damage,
liability or action arising from the sale of Securities to any person by such
Underwriter if such Underwriter failed to send or give a copy of the Final
Prospectus, as the same may be amended or supplemented, to that person and the
untrue statement or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact in the Preliminary Final Prospectus
was corrected in said amended or
16
supplemented Final Prospectus and the delivery thereof was required by law and
would have constituted a complete defense to the claim of that person, unless
such failure resulted from non-compliance by the Company with Section 5(a) or
(b). For purposes of the second proviso to the immediately preceding sentence,
the term Final Prospectus shall not be deemed to include the documents
incorporated by reference therein, and no Underwriter shall be obligated to
send or give any document incorporated by reference in a Preliminary Final
Prospectus or the Final Prospectus to any person. This indemnity agreement will
be in addition to any liability which the Company may otherwise have.
(b) Each Underwriter severally and not jointly agrees to
indemnify and hold harmless the Company, each of its directors, each of its
officers who signs each of the Registration Statements, and each person who
controls the Company within the meaning of either the Act or the Exchange Act,
to the same extent as the foregoing indemnity from the Company to each
Underwriter, but only with respect to written information relating to such
Underwriter furnished to the Company by or on behalf of such Underwriter
through the Representatives specifically for inclusion in the documents
referred to in the foregoing indemnity. This indemnity agreement will be in
addition to any liability which any Underwriter may otherwise have.
(c) Promptly after receipt by an indemnified party under
this Section 8 of notice of the commencement of any action, such indemnified
party will, if a claim in respect thereof is to be made against the
indemnifying party under this Section 8, notify the indemnifying party in
writing of the commencement thereof; but the failure so to notify the
indemnifying party (i) will not relieve it from liability under paragraph (a)
or (b) above unless and to the extent it did not otherwise learn of such action
and such failure results in the forfeiture by the indemnifying party of
substantial rights and defenses and (ii) will not, in any event, relieve the
indemnifying party from or otherwise affect any obligations to any indemnified
party other than the indemnification obligation provided in paragraph (a) or
(b) above. The indemnifying party shall be entitled to appoint counsel of the
indemnifying party's choice at the indemnifying party's expense to represent
the indemnified party in any action for which indemnification is sought (in
which case the indemnifying party shall not thereafter be responsible for the
fees and expenses of any separate counsel retained by the indemnified party or
parties except as set forth below); provided, however, that such counsel shall
be satisfactory to the indemnified party. Notwithstanding the indemnifying
party's election to appoint counsel to represent the indemnified party in an
action, the indemnified party shall have the right to employ separate counsel
(including local counsel), and the indemnifying party shall bear the reasonable
fees, costs and expenses of such separate counsel if (i) the use of counsel
chosen by the indemnifying party to represent the indemnified party would
present such counsel with a conflict of interest, (ii) the actual or potential
defendants in, or targets of, any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have
reasonably concluded that there may be legal defenses available to it and/or
other indemnified parties which are different from or additional to those
available to the indemnifying party, (iii) the indemnifying party shall not
have employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after notice of the institution of
such action or (iv) the indemnifying party shall authorize in writing the
indemnified party to employ separate counsel at the expense of the indemnifying
party. An indemnifying party will not, without the prior written consent of the
indemnified parties, settle or compromise or consent to
17
the entry of any judgment with respect to any pending or threatened claim,
action, suit or proceeding in respect of which indemnification or contribution
may be sought hereunder (whether or not the indemnified parties are actual or
potential parties to such claim or action) unless such settlement, compromise
or consent includes an unconditional release of each indemnified party from all
liability arising out of such claim, action, suit or proceeding.
(d) In the event that the indemnity provided in
paragraph (a) or (b) of this Section 8 is unavailable to or insufficient to
hold harmless an indemnified party for any reason, the Company and the
Underwriters severally agree to contribute to the aggregate losses, claims,
damages and liabilities (including legal or other expenses reasonably incurred
in connection with investigating or defending same) (collectively "Losses") to
which the Company and one or more of the Underwriters may be subject in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and by the Underwriters on the other from the offering
of the Securities; provided, however, that in no case shall any Underwriter
(except as may be provided in any agreement among underwriters relating to the
offering of the Securities) be responsible for any amount in excess of the
amount of the Securities purchased by such Underwriter hereunder less any
damages which the Underwriter has otherwise been required to pay by reason of
any untrue or alleged untrue statement or omission or alleged omission of a
material fact. If the allocation provided by the immediately preceding sentence
is unavailable for any reason, the Company and the Underwriters severally shall
contribute in such proportion as is appropriate to reflect not only such
relative benefits but also the relative fault of the Company on the one hand
and of the Underwriters on the other in connection with the statements or
omissions which resulted in such Losses as well as any other relevant equitable
considerations. Benefits received by the Company shall be deemed to be equal to
the total net proceeds from the offering (before deducting expenses) received
by it, and benefits received by the Underwriters shall be deemed to be equal to
the total underwriting discounts and commissions, in each case as set forth on
the cover page of the Final Prospectus. Relative fault shall be determined by
reference to, among other things, whether any untrue or any alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information provided by the Company on the one hand or
the Underwriters on the other, the intent of the parties and their relative
knowledge, access to information and opportunity to correct or prevent such
untrue statement or omission. The Company and the Underwriters agree that it
would not be just and equitable if contribution were determined by pro rata
allocation or any other method of allocation which does not take account of the
equitable considerations referred to above. Notwithstanding the provisions of
this paragraph (d), no person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Act) shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation. For
purposes of this Section 8, each person who controls an Underwriter within the
meaning of either the Act or the Exchange Act and each director, officer,
employee and agent of an Underwriter shall have the same rights to contribution
as such Underwriter, and each person who controls the Company within the
meaning of either the Act or the Exchange Act, each officer of the Company who
shall have signed the Registration Statements and each director of the Company
shall have the same rights to contribution as the Company, subject in each case
to the applicable terms and conditions of this paragraph (d).
9. Default by an Underwriter. If any one or more
Underwriters shall fail to purchase and pay for any of the Securities agreed to
be purchased by such Underwriter or
18
Underwriters hereunder and such failure to purchase shall constitute a default
in the performance of its or their obligations under this Agreement, the
remaining Underwriters shall be obligated severally to take up and pay for (in
the respective proportions which the principal amount of Securities set forth
opposite their names in Schedule II hereto bears to the aggregate principal
amount of Securities set forth opposite the names of all the remaining
Underwriters) the Securities which the defaulting Underwriter or Underwriters
agreed but failed to purchase; provided, however, that in the event that the
aggregate principal amount of Securities which the defaulting Underwriter or
Underwriters agreed but failed to purchase shall exceed 10% of the aggregate
principal amount of Securities set forth in Schedule II hereto, the remaining
Underwriters shall have the right to purchase all, but shall not be under any
obligation to purchase any, of the Securities, and if such nondefaulting
Underwriters do not purchase all the Securities, this Agreement will terminate
without liability to any nondefaulting Underwriter or the Company. In the event
of a default by any Underwriter as set forth in this Section 9, the Closing
Date shall be postponed for such period, not exceeding five Business Days, as
the Representatives shall determine in order that the required changes in the
Registration Statements and the Final Prospectus or in any other documents or
arrangements may be effected. Nothing contained in this Agreement shall relieve
any defaulting Underwriter of its liability, if any, to the Company and any
nondefaulting Underwriter for damages occasioned by its default hereunder.
10. Termination. This Agreement shall be subject to
termination in the absolute discretion of the Representatives, by notice given
to the Company prior to delivery of and payment for the Securities, if at any
time prior to such time (i) trading in the Company's Common Stock shall have
been suspended by the Commission or the New York Stock Exchange or trading in
securities generally on the New York Stock Exchange shall have been suspended
or limited or minimum prices shall have been established on such Exchange, (ii)
a banking moratorium shall have been declared either by Federal or New York
State authorities or (iii) there shall have occurred any material adverse
change in the financial markets in the United States or the international
financial markets, any outbreak of hostilities or escalation thereof or other
calamity or crisis or any change or development involving a prospective change
in national or international political, financial or economic conditions, in
each case the effect of which is such as to make it, in the sole judgment of
the Representatives, impractical or inadvisable to proceed with the offering or
delivery of the Securities as contemplated by the Final Prospectus (exclusive
of any supplement thereto).
11. Representations and Indemnities to Survive. The
respective agreements, representations, warranties, indemnities and other
statements of the Company or its officers and of the Underwriters set forth in
or made pursuant to this Agreement will remain in full force and effect,
regardless of any investigation made by or on behalf of any Underwriter or the
Company or any of the officers, directors, employees, agents or controlling
persons referred to in Section 8 hereof, and will survive delivery of and
payment for the Securities. The provisions of Sections 7 and 8 hereof shall
survive the termination or cancellation of this Agreement.
12. Notices. All communications hereunder will be in
writing and effective only on receipt, and, if sent to the Representatives,
will be mailed, delivered or telefaxed to ▇.▇. ▇▇▇▇▇▇ Securities Inc.,
Attention: Transaction Execution Group (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed
to ▇.▇. ▇▇▇▇▇▇ Securities Inc. at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇ ▇▇▇▇▇, Attention: Transaction Execution Group, and to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
Inc., Attention:
19
General Counsel (fax no.: (▇▇▇) ▇▇▇-▇▇▇▇) and confirmed to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney
Inc. at ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General
Counsel; or, if sent to the Company, will be mailed, delivered or telefaxed and
confirmed to ▇▇▇ Communications, Inc., ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇.▇. ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇ (fax no. ▇▇▇-▇▇▇-▇▇▇▇), with a copy,
Attention: General Counsel (fax no. ▇▇▇-▇▇▇-▇▇▇▇).
13. Successors. This Agreement will inure to the benefit
of and be binding upon the parties hereto and their respective successors and
the officers, directors, employees, agents and controlling persons referred to
in Section 8 hereof, and no other person will have any right or obligation
hereunder.
14. Applicable Law. This Agreement will be governed by
and construed in accordance with the laws of the State of New York applicable
to contracts made and to be performed within the State of New York.
15. Counterparts. This Agreement may be signed in one or
more counterparts, each of which shall constitute an original and all of which
together shall constitute one and the same agreement.
16. Headings. The section headings used herein are for
convenience only and shall not affect the construction hereof.
17. Definitions. The terms which follow, when used in
this Agreement, shall have the meanings indicated.
"Act" shall mean the Securities Act of 1933, as amended, and
the rules and regulations of the Commission promulgated thereunder.
"Base Prospectuses" shall mean the prospectuses referred to
in paragraph 1(a) above contained in the Registration Statements at
the respective Effective Dates, as the same may have been amended at
the Execution Time.
"Business Day" shall mean any day other than a Saturday, a
Sunday or a legal holiday or a day on which banking institutions or
trust companies are authorized or obligated by law to close in New
York City.
"Commission" shall mean the Securities and Exchange
Commission.
"Effective Dates" shall mean each date and time that the
respective Registration Statements, any post-effective amendment or
amendments thereto and any Rule 462(b) Registration Statements became
or become effective.
"Exchange Act" shall mean the Securities Exchange Act of
1934, as amended, and the rules and regulations of the Commission
promulgated thereunder.
"Execution Time" shall mean the date and time that this
Agreement is executed and delivered by the parties hereto.
"Final Prospectus" shall mean the prospectus supplement
relating to the Securities that was first filed pursuant to Rule
424(b) after the Execution Time, together with the Base Prospectus.
20
"Preliminary Final Prospectus" shall mean any preliminary
prospectus supplement to the Base Prospectus which describes the
Securities and the offering thereof and is used prior to filing of the
Final Prospectus, together with the Base Prospectus.
"Registration Statements" shall mean the registration
statements referred to in paragraph 1(a) above and identified on
Schedule I hereto, including respective exhibits and financial
statements, as amended by pre- or post-effective amendments at the
Execution Time (or, if not effective at the Execution Time, in the
form in which it shall become effective) and, in the event any Rule
462(b) Registration Statement becomes effective prior to the Closing
Date, shall also mean such Rule 462(b) Registration Statement, as the
case may be. Such term shall include any Rule 430A Information deemed
to be included therein at the Effective Date as provided by Rule 430A.
"Rule 415", "Rule 424", "Rule 430A" and "Rule 462" refer to
such rules under the Act.
"Rule 430A Information" shall mean information with respect
to the Securities and the offering thereof permitted to be omitted
from any of the Registration Statements when it becomes effective
pursuant to Rule 430A.
"Rule 462(b) Registration Statement" shall mean a
registration statement and any amendments thereto filed pursuant to
Rule 462(b) relating to the offering covered by the registration
statements referred to in Section 1(a) hereof.
"Trust Indenture Act" shall mean the Trust Indenture Act of
1939, as amended, and the rules and regulations of the Commission
promulgated thereunder.
21
If the foregoing is in accordance with your understanding of
our agreement, please sign and return to us the enclosed duplicate hereof,
whereupon this letter and your acceptance shall represent a binding agreement
among the Company and the several Underwriters.
Very truly yours,
▇▇▇ Communications, Inc.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Treasurer
The foregoing Agreement is hereby
confirmed and accepted as of the
date specified in Schedule I
hereto.
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Managing Director
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: VP
For itself and the other several
Underwriters named in Schedule II
to the foregoing Agreement.
SCHEDULE I
Underwriting Agreement dated September 17, 2002
Registration Statement Nos. 333-82575 and 333-3766
Representatives: ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Title, Purchase Price and Description of Securities:
Title: 7.125% Notes due 2012
Principal amount: $1,000,000,000
Initial public offering price: 99.263% of the principal amount
thereof ($992,630,000), plus
accrued interest, if any, from
September 20, 2002
Purchase price: 98.613% of the principal amount
thereof ($986,130,000)
Sinking fund provisions: None
Interest rate: 7.125% per annum, payable April 1
and October 1 of each year,
commencing April 1, 2003
Stated Maturity Date: October 1, 2012
Redemption provision: The Company may redeem the notes
at any time, in whole or in part,
on at least 30 but not more than
60 calendar days' notice, at a
redemption price equal to the
greater of (i) 100% of the
principal amount of the notes to
be redeemed and (ii) the sum, as
determined by the quotation agent,
of the present values of the
principal amount and the remaining
scheduled payments of interest on
such notes to be redeemed
(exclusive of interest accrued to
the date of redemption), in each
case discounted from their
respective scheduled payment dates
to the redemption date on a
semiannual basis (assuming a
360-day year consisting of twelve
30-day months) at the treasury
rate plus 55 basis points, plus,
in either case, accrued interest
thereon to the date of redemption
Other provisions: N/A
Closing Date, Time and Location: September 20, 2002 at 9:00 a.m. at
Shearman & Sterling, ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Type of Offering: Non-delayed
Date referred to in Section 5(f) after
which the Company may offer or sell
debt securities issued or guaranteed
by the Company without the consent
of the Representatives: September 20, 2002
Modification of items to be covered by
the letter from Deloitte & Touche LLP
delivered pursuant to Section 6(e) at
the Execution Time: None
SCHEDULE II
Principal Amount
of Securities to
be Purchased
-----------------
Underwriters
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc............................... $ 350,150,000
▇.▇. ▇▇▇▇▇▇ Securities Inc............................. 350,150,000
▇▇▇▇▇▇▇ Lynch, Pierce, ▇▇▇▇▇▇ & ▇▇▇▇▇
Incorporated......................... 33,300,000
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ & Co. Incorporated...................... 33,300,000
Banc of America Securities LLC......................... 33,300,000
Wachovia Securities, Inc............................... 33,300,000
▇▇▇▇▇▇ Brothers Inc.................................... 33,300,000
Banc One Capital Markets, Inc.......................... 33,300,000
Sun Trust Capital Markets, Inc......................... 33,300,000
BNY Capital Markets, Inc............................... 33,300,000
Fleet Securities, Inc.................................. 33,300,000
Total......................................... $1,000,000,000
==============
SCHEDULE III
List of Subsidiaries
▇▇▇ Communications Las Vegas, Inc.
Cox Classic Cable, Inc.
CoxCom, Inc.
▇▇▇ Communications BTP Holdings, Inc.
CCI PCS, Inc.
Cox @Home, Inc.
