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Exhibit 1.1
RCN Corporation
FORM OF
UNDERWRITING AGREEMENT
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RCN Corporation
FORM OF UNDERWRITING AGREEMENT
Ladies and Gentlemen:
RCN Corporation, a Delaware corporation (the "Company"), confirms its
agreement with [ ] (the "Underwriters", which term shall also include any
underwriter substituted as hereinafter provided in Section 10 hereof), with
respect to the sale by the Company and the purchase by the Underwriters,
acting severally and not jointly, of the respective principal amounts set
forth in Schedule A hereto, of [ ] of the Company's [securities] [and the
grant by the Company to the Underwriters, acting severally and not jointly, of
the option described in Section 2(b) hereof to purchase all or any part of an
additional [ ] securities to cover over-allotments, if any]. The aforesaid [ ]
securities (the "Initial Securities") to be purchased by the Underwriters and
all or any part of the [ ] securities subject to the option described in
Section 2(b) hereof, if applicable (the "Option Securities") are hereinafter
called, collectively, the "Securities". [The Securities are to be issued
pursuant to an indenture dated as of [ ], (the "Indenture") between the
Company and [ ], as trustee (the "Trustee").]
The Company understands that the Underwriters propose to make a
public offering of the Securities as soon as the Underwriters deem advisable
after this Agreement has been executed and delivered [and the Indenture has
been qualified under the Trust Indenture Act of 1939, as amended (the "1939
Act")].
The Company has filed with the Securities and Exchange Commission
(the "Commission") a registration statement on Form S-3 (No. 333-71525)
covering the registration of the Securities under the Securities Act of 1933,
as amended (the "Act"), including a prospectus relating to, among other
things, certain securities of the Company, to be issued from time to time by
the Company. Promptly after execution and delivery of this Agreement, the
Company will prepare and file a prospectus supplement in accordance with the
provisions of paragraph (b) of Rule 424 ("Rule 424(b)") of the rules and
regulations of the Commission under the Act (the "1933 Act Regulations")
relating specifically to the Securities. Any prospectus that was used prior to
execution and delivery of this Agreement is referred to as a "preliminary
prospectus." Such registration statement, including the exhibits thereto and
the
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documents incorporated by reference pursuant to Item 12 of Form S-3 under the
Act at the time it became effective is herein called the "Registration
Statement." Any registration statement filed pursuant to Rule 462(b) of the
1933 Act Regulations is herein referred to as the "Rule 462(b) Registration
Statement," and after such filing the term "Registration Statement" shall
include the Rule 462(b) Registration Statement. The final prospectus including
the documents incorporated by reference pursuant to Item 12 of Form S-3 under
the Act in the form first furnished to the Underwriters for use in connection
with the offering of the Securities is herein called the "Prospectus."
Further, the items "preliminary prospectus" and "Prospectus" shall refer to
any prospectus supplement used to consummate any offering pursuant to Rule 415
under the Act. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any
amendment or supplement to any of the foregoing shall be deemed to include the
copy filed with the Commission pursuant to its Electronic Data Gathering,
Analysis and Retrieval system ("XXXXX").
Section 1. Representations and Warranties.
(a) Representations and Warranties by the Company. The Company
represents and warrants to each Underwriter as of the date hereof, as of the
Closing Time (as defined in Section 2(c) hereof, and as of each Date of
Delivery (if any) referred to in Section 2(b) hereof), and agrees with each
Underwriter as follows:
(i) The Registration Statement has become effective under the Act
and no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for that
purpose have been instituted or are pending or, to the knowledge of
the Company, are contemplated by the Commission, and any request on
the part of the Commission for additional information has been
complied with.
As of the date of the Prospectus and at the Closing Time
(and, if any Option Securities are purchased, at the Date of
Delivery), the Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the Act and the 1933 Act Regulations and 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. Neither the
Prospectus nor any amendments or supplements thereto, at the time the
Prospectus or any such amendment or supplement was issued and at the
Closing Time (and, if any Option Securities are
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purchased, at the Date of Delivery), included or will include an
untrue statement of a material fact or omitted or will 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. The representations and warranties in this subsection
shall not apply to statements in or omissions from the Registration
Statement or Prospectus made in reliance upon and in conformity with
information furnished to the Company in writing by any Underwriter
through [ ] expressly for use in the Registration Statement or
Prospectus.
The Prospectus, when filed pursuant to Rule 424(b) under the
Act, will comply in all material respects with the 1933 Act
Regulations and the Prospectus delivered to the Underwriters for use
in connection with this offering was substantially identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(ii) The documents incorporated by reference in the Registration
Statement and the Prospectus, at the time they were filed with the
Commission, complied in all material respects with the requirements
of the Act and the 1933 Act Regulations or the Securities Exchange
Act of 1934 (the "Exchange Act") and the rules and regulations of the
Commission thereunder (the "Exchange Act Regulations"), as
applicable, and, when read together with the other information in the
Prospectus, at the time the Registration Statement became effective,
at the time the Prospectus was issued and at the Closing Time, 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.
(iii) The only Restricted Affiliates (as defined in the Indenture
dated [ ], between the Company and the Trustee) are [ ]. Each of the
Company and each "significant subsidiary" (as defined in Section
210.1-02 of Regulation S-X) of the Company (each a "Subsidiary" and
collectively, the "Subsidiaries") and the Restricted Affiliates has
been duly organized and is validly existing and in good standing
under the laws of its jurisdiction of organization, with all
requisite power and authority under such laws, and all necessary
authorizations, approvals, orders, licenses, certificates and permits
of and from regulatory or governmental officials, bodies and
tribunals, (a) to own, lease and operate their respective properties
and to conduct their respective businesses as now conducted and as
described in the Prospectus and (b), in the case of the Company, to
enter into, deliver and perform its
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obligations under this Agreement [, the Indenture] and the Securities
except, in the case of the foregoing subclause (a) for
authorizations, approvals, orders, leases, certificates and permits,
the failure of which to possess could not reasonably be expected to
have a Material Adverse Effect (as defined below); and are all duly
qualified to do business and in good standing in all other
jurisdictions where the ownership or leasing of their respective
properties or the conduct of their respective businesses requires
such qualification, except where the failure to be so qualified could
not reasonably be expected to have a material adverse effect (i) on
the business, condition (financial or otherwise), results of
operations, business affairs or business prospects of the Company,
the Restricted Affiliates and the Subsidiaries taken as a whole or
(ii) on the ability of the Company to perform any of its obligations
under this Agreement [, the Indenture] and the Securities or to
consummate any of the transactions contemplated hereby (a "Material
Adverse Effect").
(iv) This Agreement has been duly authorized, executed and
delivered by the Company.
(v) The Securities have been duly authorized by the Company, and
the Company has all requisite corporate power and authority to execute,
issue and deliver the Securities, and to incur and perform its
obligations provided for therein.
(vi) The Company has all requisite corporate power and authority
to execute and deliver this Agreement [and the Indenture] and perform
its obligations provided for therein. This Agreement has been[, and,
as of the Closing Date, the Indenture will have been,] duly
authorized, executed and delivered by the Company [and upon such
execution by the Company (assuming the due authorization, execution
and delivery by parties thereto other than the Company) and, as of
the Closing Date, the Indenture will constitute, the valid and
binding obligation of the Company, enforceable against the Company in
accordance with the terms hereof or thereof, subject only to the
Enforceability Limitations (as defined below). [The Indenture has
been duly qualified under the 1939 Act].
(vii) No consent, waiver, authorization, approval, license,
qualification or order of, or filing or registration with, any court
or governmental or regulatory agency or body, is required for the
issue and sale of the Securities, the performance by the Company of
its obligations under this Agreement, or for the consummation of any
of the transactions contemplated to be taken by the Company pursuant
to this Agreement [or the Indenture], including, without limitation,
the issuance and sale of the
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Securities hereunder, except, such as have been obtained under the
Act and such as may be required under the blue sky laws of any
jurisdiction in connection with the purchase and distribution of the
Securities by the Underwriters in the manner contemplated in this
Agreement and in the Prospectus.
(viii) The issuance, sale and delivery of the Securities, the
execution, delivery and performance by the Company of this
Agreement[, the Indenture and the Securities] and the consummation by
the Company of the transactions contemplated hereby and the
compliance by the Company with the terms of the foregoing do not,
and, at the Closing Time, will not conflict with or constitute or
result in a breach or violation by the Company, any of the
Subsidiaries or the Restricted Affiliates of (A) any of the terms or
provisions of, or constitute a default (or an event which, with
notice or lapse of time or both, would constitute a default) by any
of the Company, the Subsidiaries or the Restricted Affiliates or give
rise to any right to accelerate the maturity or require the
prepayment of any indebtedness under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or
assets of the Company, the Subsidiaries or the Restricted Affiliates
under any contract, indenture, mortgage, deed of trust, loan
agreement, note, lease, license, franchise agreement, authorization,
permit, certificate or other agreement or document to which any of
the Company, the Subsidiaries or the Restricted Affiliates is a party
or by which any of them may be bound, or to which any of them or any
of their respective assets or businesses is subject (collectively,
"Contracts") (and the Company has no knowledge of any conflict,
breach or violation of such terms or provisions or of any such
default, in any such case, which has occurred or will so result),
except for any such conflict, breach or violation which would not,
individually or in the aggregate, have a Material Adverse Effect, (B)
the articles of incorporation, by-laws or similar organizational
documents (each, an "Organizational Document") of any of the Company,
the Subsidiaries or the Restricted Affiliates or (C) any law,
statute, rule or regulation, or any judgment, decree or order, in any
such case, of any domestic or foreign court or governmental or
regulatory agency or other body having jurisdiction over the Company,
any of the Subsidiaries or the Restricted Affiliates or any of their
respective properties or assets.
[(ix) The Securities, when executed, authenticated and issued in
accordance with the terms of the Indenture (assuming the due
authorization, execution and delivery of the Indenture by the
Trustee) and when delivered against payment of the purchase price
therefor as provided in this Agreement, will constitute valid and
binding obligations of the
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Company, entitled to the benefits of the Indenture and enforceable
against the Company in accordance with the terms thereof; subject, in
the case of each of the foregoing, to (a) applicable bankruptcy,
insolvency, reorganization, moratorium and similar laws affecting
creditors' rights and remedies generally, (b) general principles of
equity (regardless of whether enforcement is sought in a proceeding
in equity or at law) and (c) the discretion of the court before which
any proceeding therefor may be brought (clauses (a), (b) and (c)
being referred to herein as the "Enforceability Limitations").]
[(x) The Securities and the Indenture will each conform in all
material respects to the descriptions thereof in the Prospectus.]
[(xi) The shares of [Common Stock][Preferred Stock] have been duly
authorized for issuance and sale to the Underwriters pursuant to this
Agreement and, when issued and delivered by the Company pursuant to
this Agreement against payment of the consideration set forth herein,
will be validly issued and fully paid and non-assessable; the [Common
Stock] [Preferred Stock] conforms to all statements relating thereto
contained in the Prospectus and such description conforms to the
rights set forth in the instruments defining the same; no holder of
the [Common Stock] [Preferred Stock] will be subject to personal
liability by reason of being such a holder; and the issuance of the
[Common Stock] [Preferred Stock] is not subject to the preemptive or
other similar rights of any security holder of the Company.]
(xii) The audited and unaudited consolidated financial statements of
the Company included or incorporated by reference in the Registration
Statement, including the notes thereto, present fairly in all
material respects 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 have been prepared in
conformity with United States generally accepted accounting
principles ("GAAP") applied on a consistent basis throughout the
periods involved. PricewaterhouseCoopers LLP, which certified the
financial statements of the Company included or incorporated by
reference in Registration Statement, is an independent public
accounting firm with respect to the Company and its Subsidiaries
within the meaning of Regulation S-X under the Act. The selected
financial data and the summary financial information included in the
Prospectus present fairly in all material respects the information
shown therein and have been compiled on a basis consistent with that
of the financial statements included in the Prospectus. [The pro
forma financial
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information relating to the Company and its Subsidiaries and the
related notes thereto included in the Prospectus present fairly in
all material respects the information shown therein, have been
prepared in all material respects in accordance with the Commission's
rules and guidelines with respect to pro forma financial adjustments
and have been properly computed on the bases described therein, and
the assumptions used in the preparation thereof are reasonable and
the adjustments used therein are appropriate to give effect to the
transactions and circumstances referred to therein.]
(xiii) Since the respective dates as of which information is given in
the Registration Statement and the Prospectus, except as otherwise
specifically stated therein, there has been no (A) material adverse
change in the business, condition (financial or otherwise), results
of operations, business affairs or business prospects of the Company,
the Subsidiaries and the Restricted Affiliates taken as a whole,
whether or not arising in the ordinary course of business (a
"Material Adverse Change"), (B) transaction entered into by any of
the Company, the Subsidiaries or the Restricted Affiliates, other
than in the ordinary course of business, that is material to the
Company, the Subsidiaries and the Restricted Affiliates, taken as a
whole or (C) dividend or distribution of any kind declared, paid or
made by the Company on its capital stock.
[(xiv) The Company has the authorized, issued and outstanding
capitalization set forth in the Prospectus; all of the outstanding
capital stock of the Company has been duly authorized and validly
issued, is fully paid and nonassessable and was not issued in
violation of any preemptive or similar rights. Except as set forth in
the Prospectus, the Company does not own, directly or indirectly, any
material amount of shares, or any other material amount of equity or
long-term debt securities or have any material equity interest in any
firm, partnership, joint venture or other entity. Except as set forth
in the Prospectus, no holder of any securities of the Company is
entitled to have such securities under the Registration Statement or
otherwise registered by the Company under the Act. All of the
outstanding capital stock or other ownership interests of each of the
Subsidiaries and Restricted Affiliates has been duly authorized and
validly issued, is fully paid and nonassessable and was not issued in
violation of any preemptive or similar rights.]
(xv) None of the Company, the Subsidiaries or the Restricted
Affiliates is (A) in violation of its respective charter documents,
(B) in default (or, with notice or lapse of time or both, would be in
default) in the performance or observance of any obligation,
agreement, covenant or
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condition contained in any Contract or (C) in violation of any law,
statute, judgment, decree, order, rule or regulation of any domestic
or foreign court with jurisdiction over the Company, the Subsidiaries
or the Restricted Affiliates or any of their respective assets or
properties, or other governmental or regulatory authority, agency or
other body, other than, in the case of clause (B) or (C), such
defaults or violations which could not, individually or in the
aggregate, reasonably be expected to have or result in a Material
Adverse Effect; and any real property and buildings held under lease
by the Company, the Subsidiaries or the Restricted Affiliates are
held by the Company or such Subsidiary or Restricted Affiliate, as
the case may be, under valid, subsisting and enforceable leases with
such exceptions which could not, individually or in the aggregate,
reasonably be expected to have or result in a Material Adverse
Effect.
(xvi) Except as described in the Prospectus, each of the Company,
the Subsidiaries and the Restricted Affiliates has obtained all
consents, approvals, orders, certificates, licenses, permits,
franchises and other authorizations, in each case material to the
operations of the Company (collectively, the "Licenses") of and from,
and has made all declarations and filings with, all governmental and
regulatory authorities, all self-regulatory organizations and all
courts and other tribunals necessary to own, lease, license and use
its properties and assets and to conduct its businesses in the manner
described in the Prospectus. None of the Company, the Subsidiaries or
the Restricted Affiliates has received any notice of proceedings
relating to the revocation or modification of, or denial of any
application for, any License which, if the subject of any unfavorable
decision, ruling or finding, could, singly or in the aggregate,
reasonably be expected to have or result in a Material Adverse
Effect; the Company, each of the Subsidiaries and the Restricted
Affiliates have fulfilled and performed all of their obligations with
respect to all Licenses possessed by any of them, except where the
failure to so fulfill and perform could not, singly or in the
aggregate, reasonably be expected to have or result in a Material
Adverse Effect; and no event has occurred which allows, or after
notice or lapse of time, or both, would allow, revocation or
termination thereof or result in any other material impairment of the
rights of the holder of any such License, except where such
revocation or termination could not, singly or in the aggregate,
reasonably be expected to have or result in a Material Adverse
Effect; and the Licenses referred to above place no restrictions on
the Company, any of the Subsidiaries or any of the Restricted
Affiliates that are not described in the Prospectus, except where
such restrictions could not, singly or in the aggregate, reasonably
be expected to have or result in a Material Adverse Effect.
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(xvii) Except as described in the Prospectus, there is no legal
action, suit, proceeding inquiry or investigation before or by any
court or governmental body or agency, domestic or foreign, now
pending or, to the best knowledge of the Company, threatened against
the Company, any of the Subsidiaries or any of the Restricted
Affiliates or affecting the Company, any of the Subsidiaries or any
of the Restricted Affiliates or any of their respective properties
which would be required to be disclosed in a registration statement
filed under the Act which could, individually or in the aggregate,
reasonably be expected to have or result in a Material Adverse
Effect. Except as set forth in the Prospectus, none of the Company,
any of the Subsidiaries or any of the Restricted Affiliates has
received any notice or claim of any material default (or event,
condition or omission which with notice or lapse of time or both
would result in a default) under any of its respective Contracts or
has knowledge of any material breach of any of such Contracts by the
other party or parties thereto, in each case which would,
individually or in the aggregate have a Material Adverse Effect.
(xviii) The Company has good and marketable title to all real and
personal property described in the Prospectus as being owned by it
and good and marketable title to a leasehold estate in the real and
personal property described in the Prospectus as being leased by it,
free and clear of all liens, charges, encumbrances or restrictions,
except to the extent the failure to have such title or the existence
of such liens, charges, encumbrances or restrictions could not,
individually or in the aggregate, reasonably be expected to have or
result in a Material Adverse Effect.
(xix) The Company is not and, after giving effect to the offering
and sale of the Securities and the application of the proceeds
therefrom as described in the Prospectus, will not be an "investment
company" as such term is defined in the Investment Company Act of
1940, as amended.
(xx) There are no contracts or documents which are required to be
described in the Registration Statement or the Prospectus or to be
filed as exhibits thereto which have not been so described or filed
as required.
(b) Any certificate signed by any officer of the Company and
delivered to the Representatives or to counsel for the Underwriters pursuant
to the terms of this Agreement shall be deemed a representation and warranty
by the Company to the Underwriters as to the matters covered thereby.
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Section 2. Sale and Delivery to Underwriters; Closing. (a) Initial
Securities. On the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth, the
Company agrees to sell to each Underwriter, severally and not jointly, and
each Underwriter, severally and not jointly, agrees to purchase from the
Company at the price set forth in Schedule B, the amount of Initial Securities
set forth in Schedule A opposite the name of such Underwriter, plus any
additional amount of Securities which such Underwriter may become obligated to
purchase pursuant to the provisions of Section 10 hereof.
[(b) Option Securities. In addition, on the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company hereby grants an option to the
Underwriters, severally and not jointly, to purchase up to an additional [ ]
Securities at the price set forth in Schedule B for the Initial Securities.
The option hereby granted will expire 30 days after the date hereof and may be
exercised in whole or in part from time to time only for the purpose of
covering over-allotments which may be made in connection with the offering and
distribution of the Initial Securities upon notice by the Underwriters to the
Company setting forth the number of Option Securities as to which the several
Underwriters are then exercising the option and the time and date of payment
and delivery for such Option Securities. Any such time and date of delivery (a
"Date of Delivery") shall be determined by the Underwriters, but shall not be
later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time, as hereinafter defined. If the option is
exercised as to all or any portion of the Option Securities, each of the
Underwriters, acting severally and not jointly, will purchase that proportion
of the total number of Option Securities then being purchased which the number
of Initial Securities set forth in Schedule A opposite the name of such
Underwriter bears to the total number of Initial Securities.]
(c) Payment. Payment of the purchase price for, and delivery of
certificates for, the Initial Securities shall be made at the offices of [ ]
or at such other place as shall be agreed upon by the Underwriters and the
Company, at 9:00 A.M. (Eastern time) on the third (fourth, if the pricing
occurs after 4:30 P.M. (Eastern time) on any given day) business day after the
date hereof (unless postponed in accordance with the provisions of Section
10), or such other time not later than ten business days after such date as
shall be agreed upon by the Underwriters and the Company (such time and date
of payment and delivery being herein called "Closing Time").
In addition, in the event that any or all of the Option Securities
are purchased by the Underwriters, payment of the purchase price for, and
delivery of certificates for, such Option Securities shall be made at the
above-mentioned
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offices, or at such other place as shall be agreed upon by the Underwriters
and the Company, on each Date of Delivery as specified in the notice from the
Underwriters to the Company.
Payment shall be made to the Company by wire transfer of immediately
available funds to a bank account designated by the Company against delivery
to the Underwriters for the respective accounts of the Underwriters of
certificates for the Securities to be purchased by them. [ ] individually and
not as representative of the Underwriters, may (but shall not be obligated to)
make payment of the purchase price for the Initial Securities or the Option
Securities, if any, to be purchased by any Underwriter whose funds have not
been received by the Closing Time or the relevant Date of Delivery, as the
case may be, but such payment shall not relieve such Underwriter from its
obligations hereunder.
(d) Denominations; Registration. Certificates for the Securities
shall be in such denominations and registered in such names as the
Underwriters may request in writing at least one full business day before the
Closing Time or the relevant Date of Delivery, as the case may be. The
certificates for the Securities will be made available for examination and
packaging by the Underwriters in The City of New York not later than 10:00
A.M. (Eastern time) on the business day prior to the Closing Time or the
relevant Date of Delivery, as the case may be.
Section 3. Covenants of the Company. The Company covenants with
each Underwriter as follows:
(a) Compliance with Securities Regulations and Commission Requests.
Until the completion of the distribution of the Securities by the
Underwriters, the Company will notify the Underwriters as soon as practicable:
(i) when any post-effective amendment to the Registration Statement shall
become effective, or any supplement to the Prospectus or any amended
Prospectus shall have been filed, (ii) of the receipt of any comments from the
Commission, (iii) of any request by the Commission for any amendment to the
Registration Statement or any amendment or supplement to the Prospectus or for
additional information, and (iv) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of any
order preventing or suspending the use of the Prospectus, or of the suspension
of the qualification of the Securities for offering or sale in any
jurisdiction, or of the initiation or threatening of any proceedings for any
of such purposes. The Company will promptly effect the filings necessary
pursuant to Rule 424(b) and will take such steps as it deems necessary to
ascertain promptly whether the form of prospectus transmitted for filing under
Rule 424(b) was received for filing by the Commission and, in the event that
it was not, it will promptly file such prospectus. The Company will make every
reasonable effort to prevent the
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issuance of any stop order and, if any stop order is issued, to obtain the
lifting thereof at the earliest practicable moment.
(b) Filing of Amendments. Prior to the completion of the
distribution of the Securities by the Underwriters, the Company will give the
Underwriters notice of its intention to file or prepare any amendment to the
Registration Statement (including any filing under Rule 462(b) but excluding
annual or quarterly reports filed under the Exchange Act) or any amendment,
supplement or revision to the Prospectus and will furnish the Underwriters
with copies of any such documents prior to such proposed filing or use, as the
case may be.
(c) Delivery of Registration Statements. The Company has furnished
or will deliver to the Underwriters and counsel for the Underwriters, without
charge, signed or conformed copies (or duplicates thereof) of the Registration
Statement as originally filed and of each amendment thereto (including
exhibits filed therewith). The copies of the Registration Statement and each
amendment thereto furnished to the Underwriters will be substantially
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(d) Delivery of Prospectuses. The Company has delivered to each
Underwriter, without charge, as many copies of each preliminary prospectus as
such Underwriter reasonably requested, and the Company hereby consents to the
use of such copies for purposes permitted by the Act. The Company will furnish
to each Underwriter during the period when the Prospectus is required to be
delivered under the Act or the Exchange Act, such number of copies of the
Prospectus (as amended or supplemented in accordance with Section 3(e)) as
such Underwriter may reasonably request. The Prospectus and any amendments or
supplements thereto furnished to the Underwriters will be substantially
identical to the electronically transmitted copies thereof filed with the
Commission pursuant to XXXXX, except to the extent permitted by Regulation
S-T.
(e) Continued Compliance with Securities Laws. The Company will
comply with the Act and the 1933 Act Regulations so as to permit the
completion of the distribution of the Securities as contemplated in this
Agreement and in the Prospectus. If at any time after the first date of the
public offering of securities to be sold hereunder and prior to the expiration
of nine months after the date of the Prospectus relating to the Securities to
be sold hereunder, a prospectus is required by the Act to be delivered in
connection with sales of the Securities, any event shall occur or condition
shall exist as a result of which it is necessary, in the opinion of counsel
for the Underwriters or for the Company, to amend the Registration Statement
or amend or supplement the Prospectus in order that the Prospectus will not
include any untrue statements of a material fact or omit to
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state a material fact necessary in order to make the statements therein not
misleading in the light of the circumstances existing at the time it is
delivered to a purchaser, or if it shall be necessary, in the opinion of such
counsel, at any such time to amend the Registration Statement or amend or
supplement the Prospectus in order to comply with the requirements of the Act
or the 1933 Act Regulations, the Company will promptly prepare and file with
the Commission, subject to Section 3(b), such amendment or supplement as may
be necessary to correct such statement or omission or to make the Registration
Statement or the Prospectus comply with such requirements, and the Company
will furnish to the Underwriters such number of copies of such amendment or
supplement as the Underwriters may reasonably request.
(f) Blue Sky Qualifications. The Company will use its best efforts,
in cooperation with the Underwriters, to qualify the Securities for offering
and sale under the applicable securities laws of such states and other
jurisdictions (domestic or foreign) as the Underwriters may reasonably request
and to maintain such qualifications in effect for a period of not less than
one year from the later of the effective date of the Registration Statement
and any Rule 462(b) Registration Statement; provided, however, that the
Company shall not be obligated to file any general consent to service of
process or to qualify as a foreign corporation or as a dealer in securities in
any jurisdiction in which it is not so qualified or to subject itself to
taxation in respect of doing business in any jurisdiction in which it is not
otherwise so subject. In each jurisdiction in which the Securities have been
so qualified, the Company will file such statements and reports as may be
required by the laws of such jurisdiction to continue such qualification in
effect for a period of not less than one year from the effective date of the
Registration Statement and any Rule 462(b) Registration Statement.
(g) Rule 158. The Company will timely file such reports pursuant to
the Exchange Act as are necessary in order to make generally available to its
security holders as soon as practicable an earnings statement for the purposes
of, and to provide the benefits contemplated by, the last paragraph of Section
11(a) of the Act.
(h) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner specified in the
Prospectus under "Use of Proceeds."
[(i) Restriction on Sale of Securities. During a period of 90 days
from the date of the Prospectus, the Company will not, without the prior
written consent of [lead underwriter] directly or indirectly, issue, sell,
offer or contract to sell, grant any option for the sale of or otherwise
transfer or dispose of any securities of the Company of the class being sold
under this Agreement.]
14
(j) Reporting Requirements. The Company, during the period when the
Prospectus is required to be delivered under the Act or the Exchange Act, will
file all documents required to be filed with the Commission pursuant to the
Exchange Act within the time periods required by the Exchange Act and the
rules and regulations of the Commission thereunder.
Section 4. Payment of Expenses. (a) Whether or not any sale of the
Securities is consummated, the Company agrees to pay and bear all costs and
expenses incident to the performance of all of its obligations under this
Agreement, including (i) the preparation and printing of the Registration
Statement and any amendments or supplements thereto prepared prior to nine
months after the date of the Prospectus and the cost of furnishing copies
thereof to the Underwriters, (ii) the preparation, issuance, printing and
delivery of certificates for the Securities, [including any stock or other
transfer taxes and any stamp or other duties payable upon the sale, issuance
or delivery of the Securities to the Underwriters,] (iii) the fees and
disbursements of the Company's counsel and accountants, (iv) the printing and
delivery to the Underwriters of copies of each preliminary prospectus and of
the Prospectus and any amendments or supplements thereto prepared prior to
nine months after the date of the Prospectus, (v) the fees and expenses of any
transfer agent or registrar for the Securities, (vi) the filing fees in
connection with the review by the National Association of Securities Dealers,
Inc. (the "NASD") of the terms of the sale of the Securities, (vii) the fees
and expenses incurred in connection with the listing of the Common Stock, and
(viii) all expenses (including travel expenses) of the Company in connection
with any meetings with prospective investors in the Securities.
(b) 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 5 hereof is not satisfied or because this Agreement is
terminated pursuant to Section 9(a)(i) or Section 10 hereof or because of any
failure, refusal or inability on the part of the Company to perform all
obligations and satisfy all conditions on its part to be performed or
satisfied hereunder other than by reason of a default by an Underwriter in
payment for the Securities at the Closing Time, the Company agrees to
reimburse the Underwriters promptly upon demand for all reasonable and
documented out-of-pocket expenses (including reasonable fees and disbursements
of their counsel) that shall have been incurred by them in connection with the
proposed purchase and sale of the Securities.
Section 5. Conditions of the Underwriters' Obligations. The
obligations of the several Underwriters to purchase and pay for the Securities
are subject to the continued accuracy, as of the Closing Time and at each Date
of Delivery, of the representations and warranties of the Company herein
contained, to the
15
accuracy of the statements of the Company and officers of the Company made in
any certificate pursuant to the provisions hereof, to the performance by the
Company of its obligations hereunder, and to the following further conditions:
(a) The Registration Statement has become effective and at the
Closing Time no stop order suspending the effectiveness of the Registration
Statement shall have been issued under the Act or proceedings therefor
initiated or threatened by the Commission, and any request on the part of the
Commission for additional information shall have been complied with to the
reasonable satisfaction of counsel to the Underwriters. A prospectus shall
have been filed with the Commission in accordance with Rule 424(b).
(b) At the Closing Time, the Underwriters shall have received the
opinion of Xxxxx Xxxx & Xxxxxxxx, counsel to the Company, dated as of the
Closing Time, in substantially the form set forth below and otherwise
reasonably satisfactory to the Underwriters and counsel for the Underwriters,
to the effect that:
(1) The Company has the requisite corporate power and
authority to execute, deliver and perform its obligations
under this Agreement [and the Indenture];
(2) This Agreement has been duly authorized, executed
and delivered by the Company;
(3) The statements in the Prospectus under the headings
["Description of Capital Stock"] ["Description of Debt
Securities"] insofar as such statements purport to summarize
certain provisions of the [Certificate of Incorporation and
By-laws of the Company] [Indenture] fairly summarize in all
material respects such provisions of such documents and
instruments;
[(4) When the Indenture has been duly executed by the
parties thereto, the Securities, substantially in the form
filed as an exhibit to the Registration Statement, have been
duly authorized by the Company, and such Securities have
been duly executed and authenticated in accordance with the
Indenture and duly delivered to and paid for by the
purchasers thereof in the manner described in the
Registration Statement, the Securities will, insofar as New
York law is concerned, constitute valid and binding
obligations of the Company, enforceable against the Company
in accordance with their terms, except (A) as such
enforcement may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws
16
affecting creditor's rights and remedies generally and (B)
as such enforcement may be limited by general principles of
equity, regardless of whether enforcement is sought in a
proceeding at law or in equity;]
[(5) The [Common Stock] [Preferred Stock] has been duly
authorized and when issued and delivered in accordance with
the terms of this Agreement, will be validly issued, fully
paid and non-assessable]; and
(6) The Company is not and, after giving effect to the
offering and sale of the Securities and the application of
the proceeds therefrom as described in the Prospectus, will
not be an "investment company" as such term is defined in
the Investment Company Act of 1940, as amended.
In addition such counsel shall state that the Registration Statement
has been declared effective under the Act and, to the best of such counsel's
knowledge, no stop order suspending the effectiveness of the Registration
Statement has been issued under the Act and no proceedings for that purpose
have been instituted or are pending or threatened by the Commission. Such
counsel shall also state that (although, other than as set forth in paragraph
(2) above, such counsel has not checked the accuracy or completeness of, or
otherwise verified, the information furnished with respect to matters in the
Registration Statement or the Prospectus) such counsel has generally reviewed
and discussed with representatives of the Underwriters, certain officers and
employees of, and counsel and independent public accountants for, the Company,
the information furnished, whether or not subject to such counsel's
independent check and verification and on the basis of such consideration,
review and discussion, but without independent check or verification, except
as stated, nothing has come to such counsel's attention which caused them to
believe that (A) the Registration Statement and the Prospectus (except for
financial statements and schedules and other financial and statistical data
included therein and that part of the Registration Statement that constitutes
the Statement of Eligibility (Form T-1) under the Trust Indenture Act of 1939,
as amended, of the Trustee, as to which such counsel need not express any
belief) do not comply as to form in all material respects with the Act and the
applicable rules and regulations of the Commission thereunder, (B) the
Registration Statement and the prospectus included therein at the time the
Registration Statement became effective (except for financial statements and
schedules and other financial and statistical data included therein, as to
which such counsel need not express any belief) contained any untrue statement
of a material fact or omitted to state a material fact required to be stated
therein or necessary to make the statements therein not misleading and (C) the
17
Prospectus, except as stated, contains any untrue statement of a material fact
or omits to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not
misleading.
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other than
the Federal law of the United States, the General Corporation Law of the State
of Delaware and the laws of the State of New York and (B) may rely, as to
matters of fact, to the extent they deem proper on representations or
certificates of responsible officers of the Company and certificates of public
officials.
(c) At the Closing Time, the Underwriters shall have received the
opinion of internal counsel for the Company, dated as of the Closing Time, in
the form set forth below and otherwise reasonably satisfactory to the
Underwriters and counsel for the Underwriters, to the effect that:
(1) The Company has been duly incorporated and is
validly existing under the laws of the State of Delaware,
with corporate power and authority to own, lease and operate
its assets and properties and conduct its business as
described in the Prospectus and to enter into and perform
its obligations under this Agreement [, the Securities and
the Indenture]; the Company 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;
(2) The authorized, issued and outstanding capital
stock of the Company is as set forth in the Prospectus under
the caption "[ ]"; the shares of issued and outstanding
capital stock of the Company have been duly authorized and
validly issued and are fully paid and non-assessable; and
none of the outstanding shares of capital stock of the
Company was issued in violation of the preemptive or other
similar rights of any security holder of the Company.
(3) Each of the Subsidiaries has been duly organized
and is validly existing in good standing under the laws of
the jurisdiction of its organization, has the requisite
power and authority to own, lease and operate its properties
and to conduct its business as described in the Prospectus
and is duly qualified to
18
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 individually or in the
aggregate would not result in a Material Adverse Effect; all
of the issued and outstanding capital stock or other
ownership interests of each of the Subsidiaries has been
duly authorized and validly issued, is fully paid and
non-assessable and, to such counsel's knowledge and
information, except as set forth in the Prospectus, is owned
by the Company directly, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or
equity;
(4) The issuance, sale and delivery of the Securities,
the execution, delivery and performance by the Company of
this Agreement [and the Indenture] and the consummation by
the Company of the transactions contemplated hereby and the
compliance by the Company with the terms of the foregoing do
not conflict with or constitute or result in a breach or
violation by the Company of (A) any provision of the
Certificate of Incorporation or By-laws of the Company, or
(B) any of the terms or provisions of, or constitute a
default (or an event which, with notice or lapse of time or
both, would constitute a default) by the Company under any
material Contract known to such counsel, except where any
such conflict, breach, violation or default would not result
in a Material Adverse Effect;
(5) To the knowledge of such counsel, other than as
described in the Prospectus, no legal, regulatory or
governmental proceedings are pending to which the Company or
any of the Subsidiaries or Restricted Affiliates is a party
or to which the property or assets of the Company or any of
the Subsidiaries or Restricted Affiliates are subject which,
individually or in the aggregate, could reasonably be
expected to have a Material Adverse Effect or which,
individually or in the aggregate, could have a material
adverse effect on the power or ability of the Company to
perform its obligations under this Agreement [or the
Indenture] or to consummate the transactions contemplated
hereby and to the knowledge of such counsel, no such
material proceedings have been threatened against the
Company or any of the Subsidiaries or Restricted Affiliates
or with respect to any of their respective assets or
properties;
19
(6) The Company is not in violation of its Certificate
of Incorporation or By-laws; to the knowledge of such
counsel, none of the Company, the Subsidiaries or any of the
Restricted Affiliates is in breach or violation of any law,
statute, rule or regulation, or any judgment, decree or
order or governmental or regulatory agency or other body
having jurisdiction over the Company or any of its
properties or assets except, in each case, violations,
defaults or breaches that individually or in the aggregate
would not have a Material Adverse Effect.
In addition such counsel shall state that (although, other than as
set forth in paragraph (2) above, such counsel has have not checked the
accuracy or completeness of, or otherwise verified, the information furnished
with respect to matters in the Registration Statement or the Prospectus) such
counsel has generally reviewed and discussed with representatives of the
Underwriters, certain officers and employees of, and counsel and independent
public accountants for, the Company, the information furnished, whether or not
subject to such counsel's independent check and verification and on the basis
of such consideration, review and discussion, but without independent check or
verification, except as stated, nothing has come to such counsel's attention
which caused him to believe that (A) the Registration Statement and the
prospectus included therein at the time the Registration Statement became
effective (except for financial statements and schedules and other financial
and statistical data included therein, as to which such counsel need not
express any belief) contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements therein not misleading and (B) the Prospectus, except as
stated, contains any untrue statement of a material fact or omits to state a
material fact necessary in order to make the statements therein, in the light
of the circumstances under which they were made, not misleading.
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other than
the Federal law of the United States, the General Corporation Law of the State
of Delaware and the laws of the State of New York and (B) may rely, as to
matters of fact, to the extent they deem proper on representations or
certificates of responsible officers of the Company and certificates of public
officials.
(d) At the Closing Time, the Underwriters shall have received the
opinion of Xxxxxxx & Berlin, regulatory counsel to the Company, dated as of
the Closing Time, in a form reasonably satisfactory to counsel for the
Underwriters.
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of any laws other than the
Communications Act of
20
1934, as amended, (the "Communications Act"), the Telecommunications Act of
1996 (the "1996 Act"), the Cable Communications Policy Act of 1984 (the "1984
Act") or the Cable Television Consumer Protection Act of 1992 (the "1992 Act"
and, together with the Communications Act, the 1996 Act and the 1984 Act and
rules and regulations promulgated thereunder, the "Communications Laws") and
(B) may rely, as to matters of fact, to the extent they deem proper on
representations or certificates of responsible officers of the Company and
certificates of public officials.
(e) The Underwriters shall have received the opinion, dated as of
the Closing Time, of counsel for the Underwriters, with respect to certain
matters set forth in clauses [2, 3, 4 and 6] of subsection (b) of this Section
5.
In rendering such opinions, such counsel (A) need not express any
opinion with regard to the application of laws of any jurisdiction other than
the Federal laws of the United States, the General Corporation Law of the
State of Delaware and the laws of the State of New York and (B) may rely, as
to matters of fact, to the extent they deem proper on representations or
certificates of responsible officers of the Company and certificates of public
officials.
In addition, such counsel shall additionally state that such counsel
has participated in conferences with officers and other representatives of the
Company and representatives of the independent accountants for the Company at
which conferences the contents of the Prospectus and the Registration
Statement and related matters were discussed and, although given the
limitations inherent in the role of outside counsel and the character of
determinations involved in the preparation of the Registration Statement, such
counsel is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement (except and only to the extent set forth in clause (2)
of subsection (b) of this Section 5) and has made no independent check or
verification thereof, on the basis of the foregoing, no facts have come to the
attention of such counsel which would lead such counsel to believe that the
Registration Statement or any amendment thereto, at the time such Registration
Statement or any such amendment became effective, contained an untrue
statement of a material fact or omitted to state a material fact required to
be stated therein or necessary to make the statements therein not misleading
or that the Prospectus or any amendment or supplement thereto at the time the
Prospectus was issued, at the time any such amended or supplemented prospectus
was issued or at the Closing Time, included or includes an untrue statement of
a material fact or omitted or omits to state a material fact necessary in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading (it being understood that such counsel
need express no belief with respect to the financial statements, including the
notes thereto, or any other
21
financial or statistical data found in or derived from the internal accounting
and other records of the Company and its subsidiaries set forth or referred to
in the Registration Statement or Prospectus).
(f) The following conditions contained in clauses (i) and (ii) of
this subsection (f) shall have been satisfied at and as of the Closing Time
and the Company shall have furnished to the Underwriters a certificate, signed
by the Chairman of the Board or the President and the principal financial or
accounting officer of the Company, dated as of the Closing Time, to the effect
that the signers of such certificate have carefully examined the Registration
Statement and Prospectus, any amendment or supplement thereto, and this
Agreement and that:
(i) the representations and warranties of the Company in this
Agreement are true and correct in all material respects on and as of
the Closing Time with the same effect as if made at the Closing Time;
(ii) since the date of the most recent financial statements included
or incorporated by reference in the Prospectus (exclusive of any
amendment or supplement thereto), there has been no Material Adverse
Change, whether or not arising in the ordinary course of business. As
used in this subparagraph, the term "Prospectus" means the Prospectus
in the form first used to confirm sales of the Securities;
(iii) the Company has complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to
the Closing Time; and
(iv) no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have
been instituted or are pending or are contemplated by the Commission.
(g) On the date hereof and at the Closing Time,
PricewaterhouseCoopers LLP shall have furnished to the Underwriters a letter
or letters, dated respectively as of the date of this Agreement and as of the
Closing Time, in form and substance satisfactory to the Underwriters,
confirming that they are independent certified public accountants within the
meaning of the Act and the applicable published rules and regulations
thereunder and containing statements and information of the type ordinarily
included in accountants' "comfort letters" to underwriters with respect to
financial statements of the Company and certain financial information
contained in the Registration Statement, in form and substance satisfactory to
counsel for the Underwriters.
22
(h) Subsequent to the date hereof or, if earlier, the dates as of
which information is given in the Prospectus (exclusive of any amendment or
supplement thereto), there shall not have been any change, or any development
involving a prospective change, in or affecting the business or properties of
the Company and its Subsidiaries and Restricted Affiliates, taken as a whole,
the effect of which is, in the sole judgment of the Underwriters, so material
and adverse as to make it impractical or inadvisable to proceed with the
purchase and the delivery of the Securities as contemplated by the Prospectus
(exclusive of any amendment or supplement thereto).
[(i) At the date of this Agreement, the Representatives shall have
received an agreement substantially in the form of Exhibit A hereto signed by
the persons listed on Schedule C hereto.]
[(j) In the event that the Underwriters exercise their option
provided in Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company or any
subsidiary of the Company hereunder shall be true and correct as of each Date
of Delivery and, at the relevant Date of Delivery, the Underwriters shall have
received:
(i) Officers' Certificate. A certificate, dated such Date of
Delivery, of the Chairman of the Board or the President and the
principal financial or accounting officer of the Company confirming
that the certificate delivered at the Closing Time pursuant to
Section 5(f) hereof remains true and correct as of such Date of
Delivery.
(ii) Opinion of Counsel for Company. The favorable opinion of Xxxxx
Xxxx & Xxxxxxxx, counsel for the Company, together with the favorable
opinion of [ ], counsel for the Company and Xxxxxxx & Berlin,
regulatory counsel for the Company, each in form and substance
satisfactory to counsel for the Underwriters, dated such Date of
Delivery, relating to the Option Securities to be purchased on such
Date of Delivery.
(iii) Opinion of Counsel for Underwriters. The favorable opinion of
counsel for the Underwriters, dated such Date of Delivery, relating
to the Option Securities to be purchased on such Date of Delivery.
(iv) Bring-down Comfort Letter. A letter from
PricewaterhouseCoopers LLP, in form and substance satisfactory to the
Underwriters and dated such Date of Delivery, substantially in the
same form and substance as the letter furnished to the Underwriters
pursuant to
23
Section 5(g) hereof, except that the "specified date" in the letter
furnished pursuant to this paragraph shall be a date not more than
five days prior to such Date of Delivery.]
(k) At the Closing Time and at each Date of Delivery, counsel for
the Underwriters shall have been furnished with such information, certificates
and documents as they may reasonably require for the purpose of enabling them
to pass upon the issuance and sale of the Securities as contemplated herein
and related proceedings, or in order to evidence the accuracy of any of the
representations or warranties, or the fulfillment of any of the conditions,
herein contained; and all opinions and certificates mentioned above or
elsewhere in this Agreement shall be reasonably satisfactory in form and
substance to the Underwriters and counsel for the Underwriters.
[(l) The Company and the Trustee shall have entered into the
Indenture.]
If any condition specified in this Section 5 shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be
terminated by the Underwriters by notice to the Company, and such termination
shall be without liability of any party to any other party except as provided
in Section 4. Notwithstanding any such termination, the provisions of Sections
1, 6, 7 and 8 shall remain in effect. Notice of such cancellation shall be
given to the Company in writing or by telephone, facsimile transmission or
telegraph confirmed in writing. The Company shall furnish to the Underwriters
such conformed copies of such opinions, certificates, letters and documents in
such quantities as the Underwriters and counsel for the Underwriters shall
reasonably request.
Section 6. Indemnification. (a) The Company agrees to indemnify and
hold harmless the Underwriters, their respective affiliates, and each person,
if any, who controls any Underwriter or their respective affiliates within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act, and their
respective directors, officers, employees and agents, as follows:
(i) against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, arising out of any
untrue statement or alleged untrue statement of a material fact
contained in Registration Statement (or any amendment thereto), or
the omission or alleged omission therefrom of a material fact
required to be stated therein or necessary to make the statements
therein not misleading or arising out of any untrue statement or
alleged untrue statement of a material fact included in any
preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of
a material fact necessary in order to make the statements
24
therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss, liability, claim, damage and
expense whatsoever, joint or several, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or of any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue
statement or omission; provided that (subject to Sections 6(e) below)
any such settlement is effected with the written consent of the
Company; and
(iii) against any and all expenses whatsoever, as incurred (
including reasonable fees and disbursements of one counsel chosen by
[ ] (in addition to any local counsel)), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body,
commenced or threatened, or any claim whatsoever based upon any such
untrue statement or omission, or any such alleged untrue statement or
omission, to the extent that any such expense is not paid under (i)
or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by
any Underwriter through [ ] expressly for use in the Registration Statement
(or any amendment), including any preliminary prospectus or the Prospectus (or
any amendment or supplement thereto).
(b) Each Underwriter agrees, severally and not jointly, to indemnify
and hold harmless the Company, its directors, each of its officers who signed
the Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
against any and all loss, liability, claim, damage and expense described in
the indemnity contained in subsection (a) of this Section 6, as incurred, but
only with respect untrue statements or omissions, or alleged untrue statements
or omissions, made in the Registration Statement (or any amendment thereto) or
any preliminary prospectus or the Prospectus (or any amendment or supplement
thereto) in reliance upon and in conformity with written information furnished
to the Company by such Underwriter through [ ] expressly for use in the
Registration Statement (or any amendment thereto) or such preliminary
prospectus or the Prospectus (or any amendment or supplement thereto).
25
(c) Each indemnified party shall give notice as promptly as
reasonably practicable to each indemnifying party of any action commenced
against it in respect of which indemnity may be sought hereunder, enclosing a
copy of all papers properly served on such indemnified party, but failure to
so notify an indemnifying party shall not relieve such indemnifying party from
any liability hereunder to the extent it is not materially prejudiced as a
result thereof and in any event shall not relieve it from any liability which
it may have otherwise than on account of this indemnity agreement. In the case
of parties indemnified pursuant to Section 6(a) above, one counsel to the
indemnified parties shall be selected by [ ], and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified parties
shall be selected by the Company. An indemnifying party may participate at its
own expense in the defense of any such action; provided, that counsel to the
indemnifying party shall not (except with the consent of the indemnified
party) also be counsel to the indemnified party. Notwithstanding the
foregoing, if it so elects within a reasonable time after receipt of such
notice, an indemnifying party, jointly with any other indemnifying parties
receiving such notice, may assume the defense of such action with counsel
chosen by it and approved by the indemnified parties defendant in such action
(which approval shall not be unreasonably withheld), unless such indemnified
parties reasonably object to such assumption on the ground that there may be
legal defenses available to them which are different from or in addition to
those available to such indemnifying party. If an indemnifying party assumes
the defense of such action, the indemnifying parties shall not be liable for
any fees and expenses of counsel for the indemnified parties incurred
thereafter in connection with such action. In no event shall the indemnifying
parties be liable for the fees and expenses of more than one counsel (in
addition to local counsel) separate from their own counsel for all indemnified
parties in connection with any one action or separate but similar or related
actions in the same jurisdiction arising out of the same general allegations
or circumstances. No indemnifying party shall, without the prior written
consent of the indemnified parties, settle or compromise or consent to the
entry of any judgment with respect to any litigation, or any investigation or
proceeding by any governmental agency or body, commenced or threatened, or any
claim whatsoever in respect of which indemnification or contribution could be
sought under this Section 6 or Section 7 hereof (whether or not the
indemnified parties are actual or potential parties thereto), unless such
settlement, compromise or consent (i) includes an unconditional release of
each indemnified party from all liability arising out of such litigation,
investigation, proceeding or claim and the offer and sale of any Securities
and (ii) does not include a statement as to or an admission of fault,
culpability or a failure to act by or on behalf of any indemnified party.
26
(d) If at any time an indemnified party shall have requested an
indemnifying party to reimburse the indemnified party for fees and expenses of
counsel as to which such indemnified party is liable pursuant to Section
6(a)or(b), as the case may be, such indemnifying party agrees that it shall be
liable for any settlement of the nature contemplated by Section 6(a)(ii)
effected without its written consent if (i) such settlement is entered into
more than 45 days after receipt by such indemnifying party of the aforesaid
request, (ii) such indemnifying party shall have received notice of the terms
of such settlement at least 30 days prior to such settlement being entered
into and (iii) such indemnifying party shall not have reimbursed such
indemnified party in accordance with such request prior to the date of such
settlement.
Section 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims,
damages and expenses incurred by such indemnified party, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company on the one hand and the Underwriters on the other hand from the
offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) 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 on
the one hand and of the Underwriters on the other hand in connection with the
statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company on the one hand and the
Underwriters on the other hand in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by the Underwriters,
bear to the aggregate initial offering price of the Securities.
The relative fault of the Company on the one hand and the
Underwriters on the other hand shall be determined by reference to, among
other things, whether any such untrue or alleged untrue statement of a
material fact or 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.
27
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation which does not take account of
the equitable considerations referred to above in this Section 7. The
aggregate amount of losses, liabilities, claims, damages and expenses incurred
by an indemnified party and referred to above in this Section 7 shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in investigating, preparing or defending against any
litigation, or any investigation or proceeding by any governmental agency or
body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7, no Underwriter
shall be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by it and distributed to
the public were offered to the public exceeds the amount of any damages which
such Underwriter has otherwise been required to pay by reason of such untrue
or alleged untrue statement or omission or alleged omission.
No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation.
For purposes of this Section 7, each person, if any, who controls an
Underwriter within the meaning of Section 15 of the Act or Section 20 of the
Exchange Act shall have the same rights to contribution as such Underwriter,
and each director of the Company, each officer of the Company who signed the
Registration Statement and each person, if any, who controls the Company
within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
shall have the same rights to contribution as the Company. The Underwriters'
respective obligations to contribute pursuant to this Section 7 are several in
proportion to the number of Initial Securities set forth opposite their
respective names in Schedule A hereto and not joint.
Section 8. Representations, Warranties and Agreements To Survive
Delivery. All representations, warranties, indemnities, agreements and other
statements of the Company and its officers contained in or made pursuant to
this Agreement shall remain operative and in full force and effect, regardless
of any investigation made by or on behalf of any Underwriter or controlling
person or by or on behalf of the Company, and shall survive delivery and
payment for the Securities to the Underwriters.
28
Section 9. Termination of Agreement.
(a) Termination: General. The Underwriters may terminate this
Agreement, by notice to the Company, at any time at or prior to the Closing
Time if (i) there has been, since the time of execution of this Agreement or
since the respective dates as of which information is given in the Prospectus
and on or prior to the Closing Time, any Material Adverse Change with respect
to the Company, the Subsidiaries and the Restricted Affiliates, taken as a
whole, and whether or not arising in the ordinary course of business, or (ii)
since the date of this Agreement and on or prior to the Closing Time, (A)
there has occurred any outbreak of hostilities or escalation of existing
hostilities or other national or international 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 on the financial securities markets of the United States is
such as to make it, in the judgment of the Underwriters, impracticable to
market the Securities or to enforce contracts for the sale of the Securities,
or (B) trading in any securities of the Company has been suspended or limited
by the Commission or trading generally on the New York Stock Exchange, the
American Stock Exchange or the over-the-counter market has been suspended, or
minimum or maximum prices for trading have been fixed, or maximum ranges for
prices for securities generally have been required, by any such exchange or by
order of the Commission, the NASD or any other governmental authority or (C) a
general banking moratorium has been declared by either Federal or New York
authorities. As used in this Section 9(a), the term "Prospectus" means the
Prospectus in the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section 9, such
termination shall be without liability of any party to any other party except
as provided in Section 4 hereof, provided that Sections 1, 6, 7, and 8 shall
survive such termination and remain in full force and effect.
(c) This Agreement may also terminate pursuant to the provisions of
Section 5, with the effect stated in such Section.
Section 10. Default by One of More of the Underwriters. If one or
more of the Underwriters shall fail at the Closing Time or a Date of Delivery
to purchase the Securities which it is obligated to purchase under this
Agreement (the "Defaulted Securities"), the other Underwriters shall have the
right, but not the obligation, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any other
underwriters, to purchase all, but not less than all, of the Defaulted
Securities in such amounts as may be agreed upon and upon the terms herein set
forth; if, however, the Underwriters shall not have completed such
arrangements within such 24-hour period, then:
29
(a) if the number of Defaulted Securities does not exceed 10% of the
number of Securities to be purchased on such date, each of the non-defaulting
Underwriters shall be obligated, severally and not jointly, to purchase the
full amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the number of Defaulted Securities exceeds 10% of the number
of Securities to be purchased on such date, this Agreement or, with respect to
any Date of Delivery which occurs after the Closing Time, the obligation of
the Underwriters to purchase and of the Company to sell the Option Securities
to be purchased and sold on such Date of Delivery shall terminate without
liability on the part of any non-defaulting Underwriter.
No action taken pursuant to this Section shall relieve any defaulting
Underwriter from liability in respect of its default.
In the event of any such default which does not result in a
termination of this Agreement or, in the case of a Date of Delivery which is
after the Closing Time, which does not result in a termination of the
obligation of the Underwriters to purchase and the Company to sell the
relevant Option Securities, as the case may be, either the Underwriters or the
Company shall have the right to postpone Closing Time or the relevant Date of
Delivery, as the case may be, for a period not exceeding seven days in order
to effect any required changes in the Registration Statement or Prospectus or
in any other documents or arrangements. As used herein, the term "Underwriter"
includes any person substituted for an Underwriter under this Section 10.
Section 11. Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to [ ], attention: [ ]; and notices to the
Company shall be directed to RCN Corporation, 000 Xxxxxxxx Xxxxxx, Xxxxxxxxx,
XX 00000, attention: Chief Executive Officer, with a copy to [ ].
Section 12. Information Supplied by the Underwriters. The statements
set forth in the [ ]
sections and under the heading "Underwriting" in the Prospectus (to the extent
such statements relate to the Underwriters) constitute the only information
furnished by the Underwriters to the Company for the purposes of Sections 1
and 6 hereof.
30
Section 13. Parties. This Agreement shall inure to the benefit of and
be binding upon the Underwriters and the Company and their respective
successors. Nothing expressed or mentioned in this Agreement is intended or
shall be construed to give any person, firm or corporation, other than the
Underwriters, their respective affiliates and the Company and its successors
and legal representatives and the controlling persons and officers, directors,
employees and agents referred to in Sections 6 and 7 and their heirs and legal
representatives, any legal or equitable right, remedy or claim under, by
virtue of or in respect of this Agreement or any provision herein contained.
This Agreement and all conditions and provisions hereof are intended to be for
the sole and exclusive benefit of the Underwriters their respective affiliates
and the Company and its successors and legal representatives, and said
controlling persons and officers, directors, employees and agents and their
heirs and legal representatives, and said controlling persons and officers,
directors, employees and agents and their heirs and legal representatives, and
for the benefit of no other person, firm or corporation. No purchaser of
Securities from any Underwriter shall be deemed to be a successor by reason
merely of such purchase.
Section 14. Governing Law and Time. THIS AGREEMENT SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, WITHOUT
GIVING EFFECT TO ANY PROVISIONS RELATING TO CONFLICTS OF LAWS.
Specified times of day refer to New York time.
Section 15. Counterparts. This Agreement may be executed in one or
more counterparts and, when each party has executed a counterpart, all such
counterparts taken together shall constitute one and the same agreement.
[Signature page follows]
31
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company a counterpart hereof,
whereupon this instrument, along with all counterparts, will become a binding
agreement among the Underwriters and the Company in accordance with its terms.
Very truly yours,
RCN CORPORATION
By:_______________________________
Name:
Title:
Confirmed and accepted as of the date first above written:
By: _______________________________
By: _______________________________
Name:
Title:
32
SCHEDULE A
Number of
Initial
Name of Underwriter Securities
Total.........................................................................
SCHEDULE B
RCN CORPORATION
Common Stock and Preferred Stock
(Par Value $1.00 Per Share)
1. The initial public offering price for the Securities, determined
as provided in said Section 2, shall be $[ ].
2. The purchase price for the Securities to be paid by the several
Underwriters shall be $[ ], being an amount equal to the initial public
offering price set forth above less [ ][; provided that the purchase price per
share for any Option Securities purchased upon the exercise of the
over-allotment option described in Section 2(b) shall be reduced by an amount
per share equal to any dividends or distributions declared by the Company and
payable on the Initial Securities but not payable on the Option Securities.]
[Form of lock-up from directors, officers or other stockholders in connection
with offerings of common stock pursuant to Section 5(j)]
Exhibit A
, 199
Dear Sirs:
The undersigned, a [stockholder/an officer and/or director] of RCN
Corporation, a Delaware corporation (the "Company"), understands that [ ]
propose to enter into a Underwriting Agreement (the "Underwriting Agreement")
with the Company providing for the public offering of shares (the
"Securities") of the Company's common stock, par value $1.00 per share (the
"Common Stock"). In recognition of the benefit that such an offering will
confer upon the undersigned and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the undersigned
agrees with each underwriter to be named in the Underwriting Agreement that,
during a period of 90 days from the date of the Underwriting Agreement, the
undersigned will not, without the prior written consent of the lead
Underwriters, directly or indirectly, (i) offer, pledge, sell, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant for the sale of, or otherwise
dispose of or transfer any shares of the Company's Common Stock or any
securities convertible into or exchangeable or exercisable for Common Stock,
whether now owned or hereafter acquired by the undersigned or with respect to
which the undersigned has or hereafter acquires the power of disposition, or
file any registration statement under the Securities Act of 1933, as amended,
with respect to any of the foregoing or (ii) enter into any swap or any other
agreement or any transaction that transfers, in whole or in part, directly or
indirectly, the economic consequence of ownership of the Common Stock, whether
any such swap transaction is to be settled by delivery of Common Stock or
other securities, in cash or otherwise.
Very truly yours,
Signature:_________________________
Print Name: