EXHIBIT 1.02
ADELPHIA COMMUNICATIONS CORPORATION
20,000,000 DECSsm
7.5% Series F Mandatory Convertible Preferred Stock (DECS)
UNDERWRITING AGREEMENT
Dated as of January 15, 2002
▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
Adelphia Communications Corporation, a Delaware corporation
(the "Company"), proposes to sell issue and sell an aggregate of 20,000,000
shares (the "Firm Shares") of its 7.5% Series F Mandatory Covertible Preferred
Stock (the "DECS"), mandatorily convertible into Class A Common Stock of the
Company (the "Class A Common Stock"), to ▇▇▇▇▇▇▇ ▇▇▇▇▇ Barney Inc. (the
"Underwriter"). The Company also proposes to grant an option to sell to the
Underwriter, upon the terms and conditions set forth in Section 2 hereof, up to
an additional 3,000,000 shares of DECS (the "Additional Shares"). The Firm
Shares and the Additional Shares are hereinafter collectively referred to as the
"Shares."
On January 11, 2002, the Company completed the distribution of
all of the shares of common stock which the Company owned of Adelphia Business
Solutions, Inc. to the Company's common stockholders. Such distribution and
related transactions are hereinafter referred to as the "ABIZ Spin-Off."
This Agreement shall supersede any and all other oral or
written agreements regarding the Shares among the parties hereto.
1. Representations, Warranties and Agreements of the Company.
The Company represents and warrants to, and agrees with, the Underwriter on and
as of the date hereof and the Closing Date (as defined in Section 3) that:
(a) A Registration Statement on Form S-3 (Registration No.
333-64224), including a prospectus, with respect to the Shares has been
prepared by the Company in conformity with the requirements of the
Securities Act of 1933, as amended (the "Securities Act"), and the
rules and regulations (the "Rules and Regulations") of the Securities
and Exchange Commission (the "Commission") thereunder and have become
effective. Copies of such registration statement have been delivered by
the Company to you as the Underwriter. As used in this Agreement, (i)
"Registration Statement" means each such registration statement, as
amended and supplemented to the date hereof; (ii) "Basic Prospectus"
means the prospectus included in the Registration Statement; and (iii)
"Prospectus" means the Basic Prospectus, together with any prospectus
amendment or supplement (including in each case all documents
incorporated therein by reference (the "Incorporated Documents"))
specifically relating to the Shares, as filed with the Commission
pursuant to paragraph (b) of Rule 424 of the Rules and Regulations. The
Commission has not issued any order preventing or suspending the use of
any Prospectus, and no proceedings for such purposes 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;
(b) The Registration Statement and the Prospectus contain, and
(in the case of any amendment or supplement to any such document, or
any material incorporated by reference in any such document, filed with
the Commission after the date as of which this representation is being
made) will contain at all times during the period specified in
paragraph 4(c) hereof, all statements which are required by the
Securities Act, the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and the rules and regulations of the Commission under
such Act; and the Registration Statement, the Prospectus and the
Incorporated Documents do not, and (in the case of any amendment or
supplement to any such document, or any material incorporated by
reference in any such document, filed with the Commission after the
date as of which this representation is being made) will not, at any
time during the period specified in paragraph 4(c) hereof, contain any
untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements
therein not misleading; provided that the Company makes no
representation or warranty as to information contained in or omitted
from any Registration Statement or any Prospectus in reliance and based
upon information furnished to the Company by or on behalf of the
Underwriter, it being understood and agreed that the only such
information is that described as such in Section 8(b) hereof;
(c) Neither the Company nor any of its material subsidiaries
(the "Subsidiaries") has sustained since December 31, 2000 any material
loss or interference with its business from fire, explosion, flood or
other calamity, whether or not covered by insurance, or from any labor
dispute or court or governmental action, order or decree, otherwise
than as set forth or contemplated in the Prospectus; and, since the
respective dates as of which information is given in the Prospectus,
there has not been any reduction in the consolidated stockholders'
equity or change in the capital stock, as applicable (other than
reductions in the ordinary course of business consistent with prior
periods), material increase in the total amount of short-term debt
(excluding trade payables) or long-term debt of the Company or any of
its Subsidiaries, or any material adverse change, or any development
involving a prospective material adverse change, in or affecting the
general affairs, management, financial position, partners' equity,
shareholders' equity or results of operations of the Company and its
Subsidiaries or any of the Acquired Companies (as defined below) and
their subsidiaries, otherwise than as set forth or contemplated in the
Prospectus;
(d) Each of the Company and its Subsidiaries has good and
marketable title in fee simple to all real property and good and
marketable title to all personal property owned by them, in each case
free and clear of all liens, encumbrances and defects except such as
are described in the Prospectus or such as do not 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 and its Subsidiaries; and any real
property and buildings held under lease by the Company and its
Subsidiaries are held by them under valid, subsisting and enforceable
leases with such exceptions as are not material and do not interfere
with the use made and proposed to be made of such property and
buildings by the Company and its Subsidiaries; except in any case that
would not have a material adverse effect on the business, general
affairs, management, financial position, partners equity or
shareholders' equity (other than reductions in the ordinary course of
business consistent with prior periods), results of operations or
prospects of the Company and its Subsidiaries, taken as a whole (a
"Material Adverse Effect");
(e) (i) Each of the Subsidiaries that is a partnership or
limited liability company has been duly formed or organized and is
validly existing as a partnership or limited liability company in good
standing under the laws of its state of formation, with full power and
authority (partnership, limited liability company and other) to own its
properties and conduct its business as described in the Prospectus, and
has been duly qualified as a foreign partnership or foreign limited
liability company for the transaction of business and is in good
standing under the laws of each other jurisdiction in which it owns or
leases properties or conducts any business so as to require such
qualification, or is subject to no material liability or disability by
reason of the failure to be so qualified in any such jurisdiction
except where the failure to so qualify would not have a Material
Adverse Effect; and (ii) each of the Company and the Subsidiaries that
are corporations has been duly incorporated and is validly existing as
a corporation in good standing under the laws of its state of
incorporation, with full power and authority (corporate and other) to
own its properties and conduct its business as described in the
Prospectus, and has been duly qualified as a foreign corporation for
the transaction of business and is in good standing under the laws of
each other jurisdiction in which it owns or leases properties or
conducts any business so as to require such qualification, or is
subject to no material liability or disability by reason of the failure
to be so qualified in any such jurisdiction except where the failure to
so qualify would not have a Material Adverse Effect;
(f) Each of the Company and its Subsidiaries has the ownership
or authorized capitalizations, as the case may be, as set forth in the
Prospectus, and all of the partnership interests of the Subsidiaries
that are partnerships, all of the limited liability company interests
of the Subsidiaries that are limited liability companies and all of the
issued shares of capital stock of its Subsidiaries that are
corporations have been duly and validly authorized and issued and with
respect to shares of capital stock are fully paid and non-assessable;
and all of the partnership interests of the Subsidiaries disclosed in
the Prospectus as being owned directly or indirectly by the Company,
all of the limited liability company interests of the Subsidiaries
disclosed in the Prospectus as being owned directly or indirectly by
the Company and all of the issued shares of capital stock of the
Subsidiaries that are corporations disclosed in the Prospectus as being
owned directly or indirectly by the Company have been duly and validly
authorized and issued are fully paid and non-assessable and are owned
directly or indirectly by the Company free and clear of all liens,
encumbrances, equities or claims (other than liens to secure
indebtedness under credit facilities disclosed in the Prospectus); and
ownership of the various interests and shares of the Company and its
Subsidiaries is as described in the Prospectus;
(g) All the outstanding shares of capital stock of the Company
have been duly authorized and validly issued, are fully paid and
nonassessable and are free of any preemptive or similar rights; the
Shares have been duly authorized and, when issued and delivered to the
Underwriter against payment therefor in accordance with the terms
hereof, will be validly issued, fully paid and nonassessable and free
of any preemptive or similar rights; and the capital stock of the
Company conforms to the description thereof in the Registration
Statement and the Prospectus; the shares of Class A Common Stock
initially issuable upon conversion of the Shares have been duly
authorized and validly issued and reserved for issuance out of the
Company's authorized and unissued shares of Class A Common Stock and
when issued in accordance with the provisions of the Shares and the
certificate of designations will be duly and validly issued, fully paid
and non-assessable and will conform to the description of the Class A
Common Stock contained in the Prospectus;
(h) The Company has all requisite corporate power and
authority to execute, deliver and perform its obligations under this
Agreement and in connection with the ABIZ Spin-Off, and to consummate
the transactions contemplated by this Agreement, including, without
limitation, the corporate power and authority to issue, sell and
deliver the Shares and the Class A Common Stock as provided herein;
(i) Prior to the date hereof, none of the Company or any of
its affiliates (other than the Underwriter or any person acting on its
behalf as to which the Company makes no representation) has taken,
directly or indirectly, any action which is designed to or which has
constituted or which might have been expected to cause or result in
stabilization or manipulation of the price of any security of the
Company in connection with the offering of the Shares or the conversion
of the Shares ;
(j) The issuance and sale of the Shares, the issuance of the
Class A Common Stock upon conversion, the consummation of the ABIZ
Spin-Off, the compliance by the Company with all of the provisions of
this Agreement, and the consummation of the transactions herein and
therein contemplated will not conflict with or result in a breach or
violation of any of the terms or provisions of, or constitute a default
under, any material indenture, mortgage, deed of trust, sale/leaseback
agreement, loan agreement or other similar financing agreement or
instrument or other agreement or instrument (including, without
limitation, any license or franchise granted to the Company or one of
its Subsidiaries by a local franchising governmental body) to which the
Company or any of its Subsidiaries is a party or by which the Company
or any of its Subsidiaries is bound or has rights under or to which any
of the property or assets of the Company or any of its Subsidiaries is
subject, nor will such action result in any violation of the provisions
of the certificate of incorporation or bylaws of the Company or its
Subsidiaries that are corporations or the certificates of formation or
limited liability company operating agreements of its Subsidiaries that
are limited liability companies or the certificates of limited
partnership or the partnership agreements of its Subsidiaries that are
partnerships or any statute or any order, rule or regulation of any
court or governmental agency or body having jurisdiction over the
Company or any of its Subsidiaries or any of their properties; and no
consent, approval, authorization, order, registration or qualification
of or with any such court or governmental agency or body is required
for the issue and sale of the Shares or the Class A Common Stock or the
consummation by the Company of the transactions contemplated by this
Agreement or the Indenture, other than such consents, approvals,
authorizations, registrations or qualifications as may be required
under state securities or Blue Sky laws in connection with the purchase
and distribution of the Shares by the Underwriter;
(k) None of the Company or its Subsidiaries is in violation of
its certificate of incorporation, partnership agreement, certificate of
formation, limited liability company operating agreement or bylaws, as
the case may be, or in default in the performance or observance of any
material obligation, agreement, covenant or condition contained in any
indenture, mortgage, deed of trust, sale/leaseback agreement, loan
agreement or other similar financing agreement or instrument or other
agreement or instrument (including, without limitation, any license or
franchise granted to the Company or a subsidiary by a local franchising
governmental body) to which the Company or a subsidiary is a party or
by which it or any of its properties may be bound, except for such
defaults as would not have individually or in the aggregate a Material
Adverse Effect;
(l) The statements set forth in the Prospectus under the
caption "Description of DECS," insofar as they purport to constitute a
summary of the terms of the Company's capital stock, and incorporated
by reference in the Prospectus from the Company's Annual Report on Form
10-K for the year ended December 31, 2000 under the captions "Business"
and "Management's Discussion and Analysis of Financial Condition and
Results of Operations," as applicable, insofar as they purport to
describe the provisions of the laws and documents referred to therein,
are accurate, complete and fair in all material respects;
(m) None of the Company or its Subsidiaries is or, after
giving effect to the offering and sale of the Shares or the issuance of
the Class A Common Stock upon conversion, will be an "investment
company," or an entity "controlled" by an "investment company," as such
terms are defined in the United States Investment Company Act of 1940,
as amended (the "Investment Company Act");
(n) None of the Company, its Subsidiaries or any of their
affiliates does business with the government of Cuba or with any person
or affiliate located in Cuba within the meaning of Section 517.075,
Florida Statutes;
(o) None of the transactions contemplated by this Agreement
(including, without limitation, the use of the proceeds from the sale
of the Shares) will violate or result in a violation of Section 7 of
the Exchange Act, or any regulation promulgated thereunder, including,
without limitation, Regulations T, U and X of the Board of Governors of
the Federal Reserve System;
(p) Other than as set forth in the Prospectus (including those
matters referred to therein relating to general rulemakings and similar
matters relating generally to the cable television industry), there are
no legal or governmental proceedings pending to which the Company or
any of its Subsidiaries is a party or of which any property of the
Company or any of its Subsidiaries is the subject which, if determined
adversely to the Company or any of its Subsidiaries, would individually
or in the aggregate have a Material Adverse Effect and, to the best of
the Company's knowledge, no such proceedings are threatened or
contemplated by governmental authorities or by others; and except with
respect to general rulemakings and similar matters relating generally
to the cable television industry, during the time the Systems (as
defined below) have been owned by the Company or a subsidiary (i) there
has been no adverse judgment, order, or decree issued by the United
States Federal Communications Commission (the "FCC") relating to any of
the Systems that has not been disclosed in the Prospectus that would be
required to be disclosed in a public offering registered under the
Securities Act; (ii) there are no actions, suits, proceedings,
inquiries or investigations by the FCC pending or threatened in writing
against or affecting the Company, any of its Subsidiaries or any
System; and (iii) to the Company's knowledge, after due inquiry, there
is no reasonable basis for any such action, suit, proceeding or
investigation;
(q) Each of Deloitte & Touche LLP, who has reported on the
financial statements of the Company and one of the Acquired Companies
(as defined below), and KPMG LLP, who has reported on the financial
statements of one of the Acquired Companies, is an independent public
accountant as required by the Securities Act and the Rules and
Regulations;
(r) The ABIZ Spin-Off has been duly and validly authorized by
the Company and this Agreement has been duly and validly authorized,
executed and delivered by the Company;
(s) Except for matters covered by paragraph (w) below or with
respect to matters that would not individually or in the aggregate have
a Material Adverse Effect, (i) the Company and its Subsidiaries have
made all filings, recordings and registrations with, and possess all
validations or exemptions, approvals, orders, authorizations, consents,
licenses, certificates and permits from, the FCC, applicable public
utilities and other federal, state and local regulatory or governmental
bodies and authorities or any subdivision thereof, including, without
limitation, cable television franchises, pole attachment agreements,
and cable antenna relay service, broadcast auxiliary, earth station,
business radio, microwave or special safety radio service licenses
issued by the FCC (collectively, the "Authorizations") necessary or
appropriate to own, operate and construct the cable communication
systems owned by them (the "Systems") or otherwise for the operation of
their businesses and are not in violation thereof; (ii) all such
Authorizations are in full force and effect, and no event has occurred
that permits, or after notice or lapse of time could permit, the
revocation, termination or modification of any Authorization which is
necessary or appropriate to own, operate and construct the Systems or
otherwise for the operation of any such business; (iii) none of the
Company or any of its Subsidiaries is in violation of any duty or
obligation required by the United States Communications Act of 1934, as
amended (the "Communications Act"), or any FCC rule or regulation
applicable to the operation of any portion of any of the Systems; (iv)
none of the Company or any of its Subsidiaries is in violation of any
duty or obligation required by state or local laws, or local rules or
regulations applicable to the operation of any portion of any of the
Systems; (v) there is not pending or, to the best knowledge of the
Company or any of its Subsidiaries, threatened, any action by the FCC
or state or local regulatory authority to modify, revoke, cancel,
suspend or refuse to renew any Authorization; (vi) other than as
described in the Prospectus, there is not now issued or outstanding or,
to the best knowledge of the Company or any of its Subsidiaries,
threatened, any notice of any hearing, material violation or material
complaint against the Company or any of its Subsidiaries with respect
to the operation of any portion of the Systems and none of the Company
or its Subsidiaries has any knowledge that any person intends to
contest renewal of any material Authorization;
(t) (i)(A) The Company and its Subsidiaries have entered into,
or have rights under, all required programming agreements (including,
without limitation, all non-broadcast affiliation agreements under
which the Company and its Subsidiaries are accorded retransmission
rights relating to programming that the Systems provide to their
customers) that are material to the conduct of their business as
described in the Prospectus; and (B) all such material agreements are
in full force and effect and none of the Company, any of its
Subsidiaries or any of its affiliates has received any written notice
of revocation or material modifications of such material agreements;
and (ii)(A) either the Company or its Subsidiaries has entered into
agreements with the television stations that have notified the Company
or its Subsidiaries that such station's respective consent is required
to carry such stations on the Systems or has ceased carrying such
stations; (B) all such agreements grant the Company or one of its
Subsidiaries retransmission consent in exchange for various non-cash
consideration; and (C) all such agreements are in full force and effect
and are not subject to revocation (except in the case of material
breach by the Company or its Subsidiaries) or material modifications,
and no event has occurred that permits, or after notice or lapse of
time could permit, the revocation, termination or material modification
of any such agreement, except where the failure of such agreements to
be in full force and effect or such revocation would not, in either
case, individually or in the aggregate have a Material Adverse Effect;
(u) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, (i) all registration
statements and all other documents (including but not limited to annual
reports) required by the FCC in connection with the operation of the
Systems have been filed with the FCC; (ii) all frequencies within the
restricted aeronautical and navigational bands (i.e., 108-136 MHz and
225-400 MHz) which are currently being used in connection with the
operation of the Systems have been authorized for such use by the FCC;
(iii) each of the Systems subject to Equal Employment Opportunity
Commission ("EEOC") compliance certification by the FCC has been
certified by the FCC for annual EEOC compliance during the time such
Systems have been owned by the Company or its Subsidiaries; and (iv)
all towers associated with the Systems are in compliance with the rules
and regulations of the United States Federal Aviation Administration;
(v) Except for matters that would not individually or in the
aggregate have a Material Adverse Effect, none of the Company or any of
its Subsidiaries is in breach or violation of, or in default under, any
of the terms, conditions or provisions of the Communications Act or the
rules, regulations or policies of the FCC thereunder;
(w) (i) Except for matters that would not individually or in
the aggregate have a Material Adverse Effect, all statements of
accounts and any other filings that are required under Section 111 of
the United States Copyright Act of 1976, as amended, in connection with
the retransmission of any broadcast television and radio signals on the
Systems have been timely filed with the United States Copyright Office
and indicated royalty payments have been made for each System for each
accounting period during which such Systems have been owned by the
Company or its Subsidiaries; (ii) none of the Company, any of its
Subsidiaries or any System has received any inquiry or request from the
United States Copyright Office or from any other party challenging or
questioning any such statements of account or royalty payments; and
(iii) no claim of copyright infringement has been made or threatened in
writing against the Company, any of its Subsidiaries or any System;
(x) Neither the execution and delivery of this Agreement, nor
the consummation of the transactions contemplated hereby or by the
Prospectus under "Use of Proceeds," nor compliance with the terms,
conditions and provisions thereof by the Company, will conflict with
the Communications Act or the rules, regulations or policies of the FCC
thereunder, or will cause any suspension, revocation, impairment,
forfeiture, nonrenewal or termination of any material license, permit,
franchise, certificate, consent, authorization, designation,
declaration, filing, registration or qualification;
(y) Neither the execution and delivery of this Agreement, nor
the execution, delivery, offer, issuance and sale of the Shares, nor
compliance with the terms, conditions and provisions thereof by the
Company, requires or will require any license, permit, franchise,
certificate, consent, authorization, designation, declaration, filing,
registration or qualification by or with the FCC;
(z) On October 1, 1999, the Company consummated its previously
announced acquisition of Century Communication Corp. and FrontierVision
Partners, L.P. (collectively, the "Acquired Companies");
(aa) There are no contracts or documents which are required to
be described in the Registration Statement, the 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;
(bb) The historical financial statements and financial
statement schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement and
Prospectus comply as to form in all material respects with the
requirements applicable to registration statements on Form S-3 under
the Securities Act and the Rules and Regulations and present fairly in
all material respects the financial position, results of operations and
statements of cash flows of the Company and its consolidated
subsidiaries, at the respective dates and for the respective periods
indicated; such financial statements have been prepared in accordance
with generally accepted accounting principles applied on a consistent
basis throughout the periods presented, the other financial information
and data included or incorporated by reference in the Registration
Statement and Prospectus, historical and pro forma, are accurately
presented in all material respects and prepared on a basis consistent
with the financial statements, historical and pro forma, included in
the Prospectus and the books and records of the Company and its
subsidiaries, and the statistical information and data included in the
Prospectus are accurately presented in all material respects;
(cc) Except as disclosed in the Prospectus, there are no
holders of securities of the Company or the Subsidiaries who, by reason
of the filing of the Registration Statement or consummation of the
transactions contemplated by this Agreement, have the right to request
or demand that the Company, any of the Subsidiaries or any of their
joint ventures register any of its securities (including, without
limitation, Class A Common Stock and the Company's Class B common
stock, par value $.01 per share (the "Class B Common Stock")) under the
Securities Act; and
Except pursuant to this Agreement, there are no contracts,
agreements or understandings between the Company, any of its
Subsidiaries or any of their joint ventures and any other person that
would give rise to a valid claim against the Company or the Underwriter
for a brokerage commission, finder's fee or like payment in connection
with the issuance, purchase and sale of the Shares.
2. Purchase of the Shares. On the basis of the
representations, warranties and agreements contained herein, and subject to the
terms and conditions set forth herein, the Company agrees to issue and sell to
the Underwriter and the Underwriter agrees to purchase from the Company, the
Firm Shares at a purchase price of $24.25 per share (the "purchase price per
share").
The Company also agrees, subject to all the terms and
conditions set forth herein, to sell to the Underwriter, and, upon the basis of
the representations, warranties and agreements of the Company herein contained
and subject to all the terms and conditions set forth herein, the Underwriter
shall have the right to purchase from the Company, at the purchase price per
share, up to 3,000,000 Additional Shares pursuant to an option (the
"over-allotment option") which may be exercised at any time and from time to
time prior to 5:00 P.M., New York City time, on the 30th day after the date of
the Prospectus (or, if such 30th day shall be a Saturday or Sunday or a holiday,
on the next business day thereafter when the Nasdaq National Market is open for
trading). Additional Shares may be purchased only for the purpose of covering
over-allotments made in connection with the offering of the Firm Shares.
The Company shall not be obligated to deliver any of the
Shares except upon payment for all of the Shares to be purchased as provided
herein. The Company acknowledges and agrees that the Underwriter may sell Shares
to any affiliate of the Underwriter and that any such affiliate may sell Shares
purchased by it to the Underwriter.
3. Delivery of and Payment for the Shares.
(a) Delivery of and payment for the Shares shall be made at
the offices of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇, or at such other place as shall be agreed upon by the
Underwriter and the Company, at 10:00 A.M., New York City time, on
November 15, 2001, or at such other time or date, not later than seven
full business days thereafter, as shall be agreed upon by the
Underwriter and the Company (such date and time of payment and delivery
being referred to herein as the "Closing Date").
(b) Delivery to the Underwriter of and payment for any
Additional Shares to be purchased by the Underwriter shall be made at
the aforementioned office of ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇ at such time on such date
(the "Option Closing Date"), which may be the same as the Closing Date
but shall in no event be earlier than the Closing Date nor earlier than
two nor later than five business days after the giving of the notice
hereinafter referred to, as shall be specified in a written notice from
the Underwriter to the Company of the Underwriter's determination to
purchase a number, specified in such notice, of Additional Shares. The
place of closing for any Additional Shares and the Option Closing Date
for such Additional Shares may be varied by agreement between the
Underwriter and the Company.
On the Closing Date or the Option Closing Date, as the case
may be, payment of the purchase price for the Shares shall be made to
the Company by wire transfer of immediately available funds to an
account at a bank acceptable to the Underwriter, or by such other means
as the parties hereto shall agree prior to the Closing Date, against
delivery to the Underwriter of the certificates evidencing the Shares
to be purchased. Time shall be of the essence, and delivery at the time
and place specified pursuant to this Agreement is a further condition
of the obligations of the Underwriter hereunder. The certificates for
the Firm Shares and any Additional Shares to be purchased hereunder
shall be registered in such names and in such denominations as the
Underwriter shall request prior to 9:30 A.M., New York City time, on
the second business day preceding the Closing Date or the Option
Closing Date, as the case may be. Such certificates shall be made
available to the Underwriter in New York City for inspection and
packaging not later than 9:30 A.M., New York City time, on the business
day next preceding the Closing Date or the Option Closing Date, as the
case may be.
4. Further Agreements of the Company. The Company
agrees with the Underwriter:
(a) To furnish promptly to the Underwriter and counsel for the
Underwriter a conformed copy of each Registration Statement as
originally filed and each amendment or supplement thereto filed prior
to the date hereof or relating to or covering the Shares, and a copy of
each Prospectus filed with the Commission, including all documents
incorporated therein by reference and all consents and exhibits filed
therewith and to file with the Commission pursuant to Rule 424 a
prospectus supplement, in form and substance satisfactory to the
Underwriter and its counsel, relating to the offering contemplated
hereby;
(b) To deliver promptly to the Underwriter such reasonable
number of the following documents as the Underwriter may request: (i)
conformed copies of the Registration Statement (excluding exhibits
other than the computation of the ratio of earnings to fixed charges
and this Agreement), (ii) the Prospectus and (iii) any documents
incorporated by reference in the Prospectus;
(c) During such period following the date hereof as, in the
opinion of counsel for the Underwriter, the Prospectus is required by
law to be delivered, to comply with the Securities Act, the Exchange
Act and the rules and regulations under each thereof, so as to permit
the completion of the distribution of the Shares as contemplated in
this Agreement and in the Prospectus. If at any time when a prospectus
is required by the Securities Act to be delivered in connection with
sales of the Shares, any event shall occur or condition shall exist as
a result of which it is necessary, in the reasonable opinion of counsel
for the Underwriter 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 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 Securities Act or the Rules and
Regulations, the Company will promptly prepare and file with the
Commission, subject to paragraph (d) below, 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 Underwriter such
number of copies of such amendment or supplement as the Underwriter may
reasonably request;
(d) Prior to filing with the Commission during the period
referred to in (c) above (i) any amendment to the Registration
Statement, (ii) the Prospectus or any amendment thereto, (iii) the
prospectus supplement utilized in connection with this offering or any
amendment or supplement thereto, or (iv) any document incorporated by
reference in any of the foregoing or any amendment or supplement to
such incorporated document, to furnish a copy thereof to the
Underwriter and counsel for the Underwriter and not to file any
document that shall have been disapproved by the Underwriter, provided
that neither the Underwriter's consent to, nor the Underwriter's
delivery of, any such amendments or supplement shall constitute a
waiver of any of the conditions set forth in Section 6 hereof;
(e) To advise the Underwriter promptly (i) when any
post-effective amendment to the Registration Statement relating to or
covering the Shares becomes effective or any supplement to the
Prospectus shall have been filed, (ii) of any comments from the
Commission or any request or proposed request by the Commission for an
amendment or supplement to the Registration Statement (insofar as the
amendment or supplement relates to or covers the Shares), to the
Prospectus, to any document incorporated by reference in any of the
foregoing or for any additional information, (iii) of the issuance by
the Commission of any stop order suspending the effectiveness of the
Registration Statement or any order directed to the Prospectus or any
document incorporated therein by reference or the initiation or threat
of any stop order proceeding or of any challenge to the accuracy or
adequacy of any document incorporated by reference in any Prospectus,
(iv) of receipt by the Company of any notification with respect to the
suspension of the qualification of the Shares for sale in any
jurisdiction or the initiation or threat of any proceeding for that
purpose and (v) of the happening of any event which makes untrue any
statement of a material fact made in the Registration Statement or the
Prospectus or which requires the making of a change in the Registration
Statement or the Prospectus in order to make any material statement
therein not misleading;
(f) If, during the period referred to in (c) above, the
Commission shall issue a stop order suspending the effectiveness of the
Registration Statement, to make every reasonable effort to obtain the
lifting of that order at the earliest possible time;
(g) To file promptly all reports and any definitive proxy or
information statements required to be filed by the Company with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the
Exchange Act subsequent to the date of the Prospectus and for so long
as the delivery of a Prospectus is required in connection with the
offering and sale of the Shares;
(h) To make generally available to the Company's security
holders and to deliver to the Underwriter an earnings statement of the
Company and its Subsidiaries (which need not be audited) complying with
Section 11(a) of the Securities Act and the Rules and Regulations
(including, at the option of the Company, Rule 158), as soon as
practicable;
(i) During the period of five years after the date of this
Agreement, to furnish to the Underwriter, promptly upon written
request, copies of any annual reports, quarterly reports and current
reports filed by the Company with the Commission on Forms 10-K, 10-Q
and 8-K, or such other similar forms as may be designated by the
Commission, and such other documents, reports and information as shall
be furnished by the Company to the holders of the Shares pursuant to
the Exchange Act or any rule or regulation of the Commission
thereunder;
(j) To promptly take from time to time such actions as the
Underwriter may reasonably request to qualify the Shares and the shares
of Class A Common Stock issuable upon conversion of the Shares for
offering and sale under the securities or Blue Sky laws of such
jurisdictions as the Underwriter may designate and to continue such
qualifications in effect for so long as required for the resale of the
Shares; and to arrange for the determination of the eligibility for
investment of the Shares under the laws of such jurisdictions as the
Underwriter may reasonably request; provided that the Company and its
Subsidiaries shall not be obligated to qualify as foreign corporations
in any jurisdiction in which they are not so qualified or to file a
general consent to service of process in any jurisdiction;
(k) Not to, for so long as the Shares and the Class A Common
Stock issuable upon conversion are outstanding, be or become, or be or
become owned by, an open-end investment company, unit investment trust
or face-amount certificate company that is or is required to be
registered under Section 8 of the Investment Company Act, and to not be
or become, or be or become owned by, a closed-end investment company
required to be registered, but not registered thereunder;
(l) In connection with the offering of the Shares, until the
Underwriter shall have notified the Company of the completion of the
distribution of the Shares, not to, and to cause its affiliated
purchasers (as defined in Regulation M under the Exchange Act) not to,
either alone or with one or more other persons, bid for or purchase,
for any account in which it or any of its affiliated purchasers has a
beneficial interest, any Shares, or attempt to induce any person to
purchase any Shares; and not to, and to cause its affiliated purchasers
not to, make bids or purchase for the purpose of creating actual, or
apparent, active trading in or of raising the price of the Shares;
(m) In connection with the offering of the Shares, to make its
officers, employees, independent accountants and legal counsel
reasonably available upon request by the Underwriter and to cooperate
with the Underwriter and Underwriter's counsel with their due diligence
review through the Closing Date;
(n) To furnish to the Underwriter on the date hereof a copy of
each of the independent accountants' reports included in the
Registration Statement signed by the accountants rendering such
reports;
(o) To do and perform all things required to be done and
performed by it under this Agreement that are within its control prior
to or after the Closing Date, and to use its best efforts to satisfy
all conditions precedent on its part to the delivery of the Shares and
the Class A Common Stock issuable upon conversion of the Shares;
(p) To not take any action prior to the Closing Date which
would require the Prospectus to be amended or supplemented pursuant to
Section 4(c);
(q) To apply the net proceeds from the sale of the Shares as
set forth in the Prospectus under the heading "Use of Proceeds";
(r) To use its best efforts to have the Shares and the Class A
Common Stock issuable upon conversion of the Shares listed, subject to
notice of issuance, on the Nasdaq National Market;
(s) To the extent that the Shares constitute uncertificated
securities pursuant to Section 158 of the Delaware General Corporation
Law and within a reasonable time after the issuance or transfer of such
uncertificated Shares, to send to the registered owner thereof a
written statement that the Company will furnish without charge to each
stockholder who so requests the powers, designations, preferences, and
relative, participating, optional or other special rights pertaining to
such Shares and any other information as may be required under Section
151(f) of the Delaware General Corporation Law;
(t) To reserve and keep available at all times, free of
preemptive rights, shares of Class A Common Stock for the purpose of
enabling the Company to satisfy any obligations to issue shares of its
Class A Common Stock upon conversion of the Shares; and
(u) The Company, for a period of 90 days after the date of the
Prospectus, and the Rigas family, for a period of 70 days after the
date of the Prospectus (each such period is referred to herein as the
"Lock-up Period"), each agrees to not,, without the prior written
consent of the Underwriter, issue, offer, sell, offer or contract to
sell, grant any option for the sale of, pledge, make any short sale or
maintain any short position, establish or maintain a "put equivalent
position" (within the meaning of Rule 16-a-1(h) under the Exchange Act)
enter into any swap, derivative transaction or other arrangement that
transfers to another, in whole or in part, any of the economic
consequences of ownership of the Class A Common Stock (whether any such
transaction is to be settled by delivery of Class A Common Stock, other
securities, cash or other consideration) or otherwise dispose of,
directly or indirectly, any Class A Common Stock (or any securities
convertible into or exchangeable for, or any warrants or options to
purchase relating to Class A Common Stock) except for agreements,
transactions or activities in connection with (i) sales to the
Underwriter pursuant to this Agreement; (ii) the issuance of options or
grants of shares under the Company's employee benefit, stock option or
stock plans in existence on the date hereof or in existence from time
to time; (iii) the issuance of any shares pursuant to any existing
agreements; (iv) the issuance of shares of Class A Common Stock
pursuant to a conversion of any Class B Common Stock or convertible
preferred stock outstanding on the date hereof or pursuant to the
"November 2001 Rigas Preferred Stock Direct Placement" (as defined in
the Prospectus); (v) the issuance of capital stock of the Company to
the persons or entities named on Schedule 1 hereto including the
issuance of capital stock in connection with the "November 2001 Rigas
Common Stock Direct Placement" (as defined in the Prospectus); (vi) any
private placement of capital stock of the Company; provided that such
capital stock shall remain "restricted securities" (as defined in Rule
144(a)(3) of the Securities Act) for any remaining portion of the
Lock-up Period; (vii) any issuance of shares in connection with a bona
fide pledge of Class A Common Stock or the Class B Common Stock; (viii)
issuances of Class A Common Stock or Class B Common Stock upon
conversion of the Company's 6% Convertible Subordinated Notes due 2006,
the Company's 3.25% Convertible Subordinated Notes due 2021, the
Company's 7.5% Series E Mandatory Convertible Preferred Stock or the
Company's 7.5% Series F Mandatory Convertible Preferred Stock; (ix)
sales of the Company's 3.25% Convertible Subordinated Notes due 2021 as
contemplated in the "April 2001 Rigas Notes Direct Placement" (as
defined in the Prospectus) and issuances of Class B Common Stock or
Class A Common Stock upon conversion of such notes; and (x) any
issuance of Shares in connection with a bona fide acquisition of
telecommunications assets or an entity in the telecommunications
business.
5. Conditions of Underwriter's Obligations. The obligations of
the Underwriter hereunder are subject to the accuracy, on and as of the date
hereof and the Closing Date, of the representations and warranties of the
Company contained herein, to the accuracy of the statements of the Company and
its officers made in any certificates delivered pursuant hereto, to the
performance by the Company of its obligations hereunder and to each of the
following additional terms and conditions:
(a) The Prospectus and supplement referred to in Section 4(a)
of this Agreement shall have been timely filed with the Commission in
accordance with Section 4(a) of this Agreement. Prior to the Closing
Date, no stop order suspending the effectiveness of the Registration
Statement or any part thereof shall have been issued and no proceeding
for that purpose shall have been initiated or threatened by the
Commission; and any request of the Commission for inclusion of
additional information in the Registration Statement or the Prospectus
or otherwise shall have been complied with to the reasonable
satisfaction of the Underwriter.
(b) The Prospectus (and any amendments or supplements thereto)
shall have been printed and copies distributed to the Underwriter as
promptly as practicable on or following the date of this Agreement or
at such other date and time as to which the Underwriter may agree.
(c) The Underwriter shall not have discovered and disclosed to
the Company on or prior to the Closing Date that the Prospectus or any
amendment or supplement thereto contains an untrue statement of a fact
which, in the opinion of counsel for the Underwriter, is material or
omits to state any fact which, in the opinion of such counsel, is
material and is required to be stated therein or is necessary to make
the statements therein not misleading.
(d) All corporate proceedings and other legal matters incident
to the authorization, form and validity of this Agreement, the Shares
and the Prospectus, and all other legal matters relating to this
Agreement and the transactions contemplated hereby, shall be
satisfactory in all material respects to the Underwriter, and the
Company shall have furnished to the Underwriter all documents and
information that the Underwriter or its counsel may reasonably request
to enable them to pass upon such matters.
(e) The Underwriter shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Professional Corporation, counsel for the
Company, dated the Closing Date and addressed to the Underwriter, to
the effect that:
(i) The Company has been duly incorporated
and is validly existing as a corporation in good standing
under the laws of the state of its formation with full
corporate power and authority to own its properties and
conduct its business as described in the Prospectus;
(ii) This Agreement has been duly and
validly authorized, executed and delivered by the Company;
(iii) The ABIZ Spin-Off has been duly and
validly authorized by the Company;
(iv) All of the outstanding shares of
capital stock of the Company have been duly authorized,
validly issued, and are fully paid and nonassessable and were
not issued in violation of any preemptive or similar rights.
The outstanding shares of capital stock of the Company are as
set forth in the Prospectus under the caption
"Capitalization." The authorized capital stock of the Company
conforms in all material respects as to legal matters to the
description thereof contained in the Prospectus under the
caption "Description of Capital Stock";
(v) The shares of Class A Common Stock
initially issuable upon conversion of the Shares have been
duly authorized and reserved for issuance and when issued and
delivered upon conversion in accordance with the provisions of
the Shares, will have been validly issued and will be fully
paid and non-assessable, and the issuance of such shares is
not subject to any preemptive or similar rights;
(vi) The Shares to be issued and sold to the
Underwriter by the Company under this Agreement have been duly
authorized and when issued and delivered to the Underwriter
against payment therefor in accordance with the terms of this
Agreement, will be validly issued, fully paid and
nonassessable and free of any (A) preemptive rights or (B) to
the best knowledge of such counsel after reasonable inquiry,
similar rights that entitle or will entitle any person to
acquire any Class A Common Stock upon the issuance thereof by
the Company, other than as described in the Prospectus;
(vii) The form of certificates for the
Shares conforms to the requirements of the Nasdaq National
Market and the Delaware General Corporation Law;
(viii) The Registration Statement has become
effective under the Securities Act and the Prospectus
(including the prospectus supplement contemplated by Section
4(a) hereof) was filed pursuant to Rule 424(b) of the Rules
and Regulations and, to our knowledge, no stop order
suspending the effectiveness of the Registration Statement has
been issued or proceeding for that purpose has been instituted
or threatened by the Commission;
(ix) The Company has the corporate power and
authority to enter into the Underwriting Agreement and to
issue, sell and deliver the Shares as provided therein, and
the Underwriting Agreement has been duly authorized, executed
and delivered by the Company and is a legal, valid and binding
agreement of the Company, enforceable against the Company in
accordance with its terms, except that (A) such enforceability
may be limited by bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium (whether general or
specific) or other similar laws now or hereafter in effect
relating to or affecting creditors' rights generally, (B) such
enforceability may be limited by the effects of general
principles of equity and by the discretion of the court before
which any proceeding therefor may be brought (whether such
proceeding is at law or in equity or in a bankruptcy
proceeding) and (C) rights to contribution or indemnification
may be limited by the laws, rules or regulations of any
governmental authority or agency thereof or public policy and,
if applicable, (D) waivers as to usury, stay or extension laws
may be unenforceable;
(x) The Registration Statement and the
Prospectus, as of their dates (except for the financial
statements, including the notes thereto, and supporting
schedules and other financial, statistical and accounting data
included therein or omitted therefrom, as to which no opinion
is expressed), and each amendment or supplement thereto, as of
its date, comply as to form in all material respects with the
Securities Act and the Rules and Regulations;
(xi) The documents incorporated by reference
in the Prospectus (other than the financial statements (and
notes thereto) and related schedules therein, as to which such
counsel need express no opinion), when they were filed with
the Commission, complied as to form in all material respects
with the requirements of the Exchange Act and the Rules and
Regulations;
(xii) Neither the issuance, sale or delivery
of the Shares, nor the execution, delivery or performance of
the Underwriting Agreement, or compliance by the Company with
all provisions of this Underwriting Agreement, nor
consummation by the Company of the ABIZ Spin-Off, nor
consummation by the Company of the transactions contemplated
hereby violates, conflicts with or constitutes a breach of any
of the terms or provisions of, or a default under (or an event
that with notice or the lapse of time, or both, would
constitute a default), or require consent under, or result in
the imposition of a lien or encumbrance on any properties of
the Company or any subsidiary, or an acceleration of any
indebtedness of the Company or any subsidiary pursuant to, (i)
the charter or bylaws of the Company or (ii) any judgment,
order or decree of any court or governmental agency or
authority having jurisdiction over the Company or its assets
or properties known to such counsel, except in the case of
clause (ii) for such violations, conflicts, breaches,
defaults, consents, impositions of liens or accelerations that
(x) would not, singly or in the aggregate, have a Material
Adverse Effect or (y) are disclosed in the Prospectus;
(xiii) The Company is not an "investment
company" or an entity "controlled" by an "investment company,"
as such terms are defined in the Investment Company Act;
(xiv) Except as set forth in the Prospectus,
there are no holders of securities of the Company who, by
reason of the execution by the Company of the Underwriting
Agreement or the consummation by the Company of the
transactions contemplated thereby, have the right to request
or demand that the Company register under the Securities Act
securities held by them;
(xv) None of (A) the execution, delivery and
performance of this Agreement or (B) the issuance and sale of
the Shares and the application of the proceeds from the
issuance and sale of the Shares will violate Regulations T, U
or X promulgated by the Board of Governors of the Federal
Reserve System;
(xvi) To the knowledge of such counsel,
there is (i) no action, suit, investigation or proceeding
before or by any court, arbitrator or governmental agency,
body or official, domestic or foreign, now pending, or
threatened or contemplated to which any of the Company or any
subsidiary is or may be a party or to which the business or
property of any of the Company or any subsidiary is or may be
subject, (ii) no statute, rule, regulation or order that has
been enacted, adopted or issued by any governmental agency, or
(iii) no injunction, restraining order or order of any nature
by a federal or state court of competent jurisdiction to which
any of the Company or any subsidiary is or may be subject that
has been issued that, in the case of clauses (i), (ii) and
(iii) above, (x) is required to be disclosed in the Prospectus
and that is not so disclosed and, (y) could reasonably be
expected to have, either individually or in the aggregate, a
Material Adverse Effect, it being understood that for purposes
of this opinion, such counsel need express no opinion with
respect to (i) actions, suits investigation or proceedings
before the FCC or any similar state or local regulatory
commission or body, (ii) statutes, rules, regulations or
orders by any FCC or any similar state or local regulatory
commission or (iii) injunctions, restraining orders or other
orders by the FCC or any similar state or local regulatory
commission or body; and
(xvii) The statements set forth in the
Prospectus under the caption "Description of DECS," insofar as
they purport to constitute a summary of the terms of the
Shares, and under the caption "Certain United States Tax
Considerations" insofar as they purport to constitute a
summary of laws, governmental rules or regulations or
documents, are accurate in all material respects.
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of the Company
and its subsidiaries, representatives of the independent public accountants for
the Company and the Underwriter at which the contents of the Registration
Statement and the Prospectus (including the Incorporated Documents) and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for and has not verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus, and has not made any independent check or
verification thereof, on the basis of the foregoing (relying as to materiality
to the extent such counsel deemed appropriate upon facts provided by officers
and other representatives of the Company), no facts have come to the attention
of such counsel that lead such counsel to believe that the Registration
Statement, as of the date it was declared effective, or the Prospectus, as of
its date or as of the Closing Date, in each case including the Incorporated
Documents, contained or contains any untrue statement of material fact or
omitted or omits to state any material fact necessary 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 or
opinion with respect to the financial statements and other financial and
statistical data included therein).
The opinion of such counsel may be limited to the laws of the
Commonwealth of Pennsylvania, the General Corporation Law of the State of
Delaware and the federal laws of the United States.
(f) The Underwriter shall have received on the Closing Date
an opinion of ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., General Counsel to the Company,
dated the Closing Date and addressed to the Underwriter, to the effect
that:
(i) Except as set forth in the Prospectus,
each of the Company and its subsidiaries has all of the
licenses, permits, franchises and authorizations, if any,
required by the relevant governmental authorities of each of
New York, Virginia, Pennsylvania, Ohio, Massachusetts, New
Hampshire, Vermont, Connecticut, Wyoming, Wisconsin, Indiana,
Alabama, Mississippi, Puerto Rico, Georgia, Idaho, Washington,
California, Maryland, Illinois, West Virginia, Florida, South
Carolina, Oklahoma, Kansas, Kentucky, Colorado, Maine,
Tennessee, Arizona, North Carolina and Montana (collectively,
the "Adelphia Jurisdictions") and/or its political
subdivisions for the provision of cable television service (as
such counsel understands service to be provided which may be
based on a certificate of an officer of the Company, provided
that such counsel shall state that they believe that both the
Underwriter and he are justified in relying on such
certificate), where the failure to obtain or hold such
license, permit, franchise or authorization would have a
Material Adverse Effect;
(ii) To the best of such counsel's knowledge
after due inquiry, each of the Company and its subsidiaries
has made all filings, reports, applications and submissions
required by the laws and ordinances relating to cable services
of each of the Adelphia Jurisdictions and the ordinances of
the jurisdiction's political subdivisions relating thereto,
and the rules and regulations promulgated therewith;
(iii) Each of the Company and its
subsidiaries has the consents, approvals, authorizations,
licenses, certificates, permits, or orders of any governmental
authorities of each of the Adelphia Jurisdictions and its
political subdivisions, if any, required for the consummations
of the transactions contemplated in this Agreement where the
failure to obtain the consents, approvals, authorizations,
licenses, certificates, permits or orders would have a
Material Adverse Effect;
(iv) There are no actions, suits or
proceedings pending or, to the best of such counsel's
knowledge, threatened by or before any court or governmental
body each of the Adelphia Jurisdictions (other than Vermont)
against or affecting any of the Company or its subsidiaries,
or the business of the Company and its subsidiaries or, with
respect to Vermont, which if adversely determined would have a
Material Adverse Effect;
(v) The statements in the Prospectus under
the headings "Risk Factors - We are Subject to Extensive
Regulation" and "Risk Factors - Competition," insofar as they
relate to the Company and its subsidiaries operations each of
the Adelphia Jurisdictions and purport to describe the
provisions of the laws and documents referred to therein, are
accurate, complete and fair in all material respects; and
(vi) Neither the execution and delivery of
the Underwriting Agreement nor the offering of the Shares
contemplated thereby will conflict with or result in a
violation of any order or regulation of each of the Adelphia
Jurisdictions or its political subdivisions applicable to the
Company and its subsidiaries, the conflict with or the
violation of which would have a Material Adverse Effect on the
Company and its subsidiaries.
(g) The Underwriter shall have received on the Closing Date an
opinion of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq., Deputy General Counsel to the
Company, dated the Closing Date and addressed to the Underwriter, to
the effect that:
(i) None of the Company or its subsidiaries
is in violation of its certificate of incorporation, by-laws,
certificate of formation, limited liability company operating
agreement, certificate of limited partnership or partnership
agreement, as applicable, or in default in the performance or
observance of any material obligation, covenant or condition
contained in any partnership agreement, indenture, mortgage,
deed of trust, loan agreement, lease or other agreement or
instrument to which it is a party or by which it or any of its
properties may be bound;
(ii) Each of the Company and its
subsidiaries has been duly qualified as a foreign corporation
or partnership, as the case may be, for the transaction of
business and is in good standing under the laws of each other
jurisdiction in which it owns or leases properties or conducts
any business so as to require such qualification, or is
subject to no material liability or disability by reason of
the failure to be so qualified in any such jurisdiction,
except where the failure to so qualify would not have a
Material Adverse Effect (such counsel being entitled to rely
in respect of the opinion in this clause upon opinions of
local counsel and in respect of matters of fact upon
certificates of officers of the Company, provided that such
counsel shall state that he believes that both the Underwriter
and he are justified in relying upon such opinions and
certificates);
(iii) Each subsidiary of the Company is
owned directly or indirectly by the Company, free and clear of
all liens, encumbrances, equities or claims (other than liens
to secure indebtedness under credit facilities disclosed in
the Prospectus) (such counsel being entitled to rely in
respect of the opinion in this clause upon opinions of local
counsel and in respect of matters of fact upon certificates of
officers of the Company or its subsidiaries, provided that
such counsel shall state that he believes that both the
Underwriter and he are justified in relying upon such opinions
and certificates);
(iv) To the best of such counsel's knowledge
and other than as set forth in the Prospectus, there are no
legal or governmental proceedings pending to which the Company
or any of its subsidiaries is a party or of which any property
of the Company or any of its subsidiaries is the subject
which, if determined adversely to the Company or any of its
subsidiaries, would individually or in the aggregate have a
material adverse effect on the current or future consolidated
financial position, shareholder's equity, partners' equity, or
results of operations of the Company and its subsidiaries;
and, to the best of such counsel's knowledge, no such
proceedings are threatened or contemplated by governmental
authorities or threatened by others;
(v) The issue and sale of the Shares and the
compliance by the Company with the Underwriting Agreement and
the consummation of the transactions therein contemplated will
not, to the best of my knowledge after due inquiry, conflict
with or result in a breach or violation of any of the terms or
provisions of, or constitute a default under any material
indenture, mortgage, deed of trust, sale/leaseback
transaction, loan agreement or other similar financing
agreement, or instrument or other agreement or instrument
(including, without limitation, any license or franchise
granted to the Company or a subsidiary by a local franchising
governmental body) to which the Company or any of its
subsidiaries is a party or by which the Company or any of its
subsidiaries is bound or to which any of the property or
assets of the Company or any of its subsidiaries is subject,
nor will such actions result in any violation of the
provisions of the certificate of incorporation, by-laws, the
certificate of formation, the limited liability company
operating agreement, the certificate of limited partnership or
the partnership agreement of the Company and its subsidiaries,
as appropriate, or any statute or any order, rule or
regulation of any court or governmental agency or body having
jurisdiction over the Company or any of its subsidiaries or
any of their properties; and
(vi) No consent, approval, authorization,
order, registration or qualification of or with any such court
or governmental agency or body is required for the issue and
sale of the Shares or the consummation by the Company of the
transactions contemplated by the Underwriting Agreement,
except such consents, approvals, authorizations, registrations
or qualifications as may be required under state securities or
Blue Sky laws in connection with the purchase and resale of
the Shares by the Underwriter.
In addition, such counsel shall also state that such counsel
has participated in conferences with officers and representatives of the Company
and its subsidiaries, representatives of the independent public accountants for
the Company and the Underwriter at which the contents of the Registration
Statement and the Prospectus (including the Incorporated Documents) and related
matters were discussed and, although such counsel is not passing upon and does
not assume any responsibility for and has not verified the accuracy,
completeness or fairness of the statements contained in the Registration
Statement and the Prospectus, and has not made any independent check or
verification thereof, on the basis of the foregoing (relying as to materiality
to the extent such counsel deemed appropriate upon facts provided by officers
and other representatives of the Company), no facts have come to the attention
of such counsel that lead such counsel to believe that the Registration
Statement, as of the date it was declared effective, or the Prospectus, as of
its date or as of the Closing Date, in each case including the Incorporated
Documents, contained or contains any untrue statement of material fact or
omitted or omits to state any material fact necessary 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 or
opinion with respect to the financial statements and other financial and
statistical data included therein).
(h) The Underwriter shall have received on the Closing Date an
opinion of ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇, P.C., special regulatory counsel for the
Company and its subsidiaries, dated the Closing Date, and addressed to
the Underwriter to the effect that:
(i) The communities listed in Section A of
Attachment 1 to the opinion have been registered with the FCC
in connection with the operation of the Systems. The filing of
a registration statement constitutes initial FCC authorization
for the commencement of cable television operations in the
community registered.
(ii) The subsidiaries hold certain FCC
licenses, as that term is defined below ("FCC Licenses"). All
FCC Licenses and receive-only earth station registrations held
by the subsidiaries in connection with the operation of the
Cable Systems are listed on Attachment 1 to the Opinion. To
the best of our knowledge, all such FCC Licenses have been
validly issued or assigned to the present licensee and are
currently in full force and effect. We have no knowledge of
any event which would allow, or after notice or lapse of time
which would allow, revocation or termination of any FCC
License held by the subsidiaries or would result in any other
material impairment of the rights of the holder of such
license. To the best of our knowledge, no other FCC Licenses
are required in connection with the operation of the Cable
Systems by the subsidiaries in the manner we have advised they
are presently being operated. For the purposes of this
opinion, an FCC License is defined as an authorization, or
renewal thereof, issued by the FCC authorizing the
transmission of radio energy through the airways.
(iii) Other than proceedings affecting the
cable television industry generally and other than rate
proceedings, there is no action, suit or proceeding pending
before or, to the best of our knowledge, threatened by the FCC
which is reasonably likely to have a materially adverse impact
upon the cable television operations of the Company and its
subsidiaries taken as a whole.
(iv) Statements of Account required by
Section 111 of the Copyright Act of 1976, as amended have been
filed, together with royalty payments accompanying said
Statements of Account, with the U.S. Copyright Office for the
Cable Systems covering each of the accounting periods
beginning with January 1 through June 30, 1998 accounting
period and ending with the January 1 through June 30, 2001
accounting period during which such Cable Systems have been
operated by the subsidiaries. We have not reviewed the
information or calculations contained in these Statements, and
express no opinion with respect to the accuracy thereof. Based
solely on material in counsel's file and material
representations provided by the Company, to the best of such
counsel's knowledge, there is no pending or threatened claim
against the Company or any of its subsidiaries for copyright
infringement or for non-payment of royalty fees nor does such
counsel know of any basis for such a claim.
(v) The Company has obtained all consents,
approvals and authorizations of the FCC, if any, required for
the consummation of the transactions contemplated in the
Underwriting Agreement where the failure to obtain the
consents, approval, authorizations, licenses, certificates,
permits or orders would reasonably be expected to have a
materially adverse impact on the Company or the subsidiaries.
(vi) Neither the execution and delivery of
the Underwriting Agreement nor the offering of the Shares
contemplated thereby will conflict with or result in a
violation of any order or regulation of the FCC applicable to
the Company and the subsidiaries, the conflict with or the
violation of which would reasonably be expected to have a
materially adverse impact on the Company or the subsidiaries.
However, we call your attention to the following:
(A) Under the Communications Act as now in
effect, the sale or other disposition of certain pledged
collateral and the exercise of certain other rights and
remedies conferred upon you by any agreement or by applicable
law might constitute an assignment of an FCC license, or
transfer of control of an FCC licensee, requiring for its
consummation the prior consent of the FCC granted upon an
appropriate application thereof.
(B) Under the Communications Act as now in
effect, and as now interpreted by the FCC, no valid security
interest may be granted in an FCC license. To the extent that
the Underwriting Agreement and/or related financing documents
purport to grant to you a security interest in any FCC
licenses, such security interest may not be legally
enforceable.
(vii) In the course of our representation of
the Company and its subsidiaries, no matters have come to our
attention, other than matters affecting the cable television
industry generally, which would reasonably be expected to have
a materially adverse impact upon the cable television
operations of the Company and the subsidiaries taken as a
whole.
(viii) In our opinion, the Statements in the
Prospectus under the headings "Risk Factors--We are Subject to
Extensive Regulation" and the statements incorporated in the
Prospectus by reference to (a) the Company's Annual Report on
Form 10-K for the year ended December 31, 2000, as amended by
Form 10-K/A under the headings "Business--Cable Television
Operations--Subscriber Services and Rates," "--Franchises,"
"--Cable Television Operations," "--Legislation and
Regulation," and "Management's Discussion and Analysis of
Financial Condition and Results of Operations--Regulatory and
Competitive Matters" and (b) the Company's Quarterly Report on
Form 10-Q for the quarter ended September 30, 2001 under the
heading "Management's Discussion and Analysis of Financial
Condition and Results of Operations - Regulatory and
Competitive Matters", insofar as they purport to describe the
provisions of the law referred to therein regarding the cable
television industry, are accurate, complete and fair in all
material respects.
(i) The Underwriter shall have received from ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇,
counsel for the Underwriter, such opinion or opinions, dated the
Closing Date, with respect to such matters as the Underwriter may
reasonably require, and the Company shall have furnished to such
counsel such documents and information as they request for the purpose
of enabling them to pass upon such matters.
(j) The Company shall have furnished to the Underwriter a
letter from each of Deloitte & Touche LLP and KPMG LLP, addressed to
the Underwriter and dated as of the date of this Agreement and as of
the Closing Date covering the matters previously requested by the
Underwriter, in form and substance satisfactory to the Underwriter and
its counsel in their sole discretion.
(k) The Company shall have furnished to the Underwriter a
certificate, dated the Closing Date, of its chief executive officer and
its chief financial officer stating that (A) such officers have
carefully examined the Registration Statement and the Prospectus, (B)
in their opinion, the Registration Statement and the Prospectus did not
include any untrue statement of a material fact and did not omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and no event has occurred
which should have been set forth in a supplement or amendment to the
Registration Statement and the Prospectus so that the Registration
Statement and the Prospectus (as so amended or supplemented) would not
include any untrue statement of a material fact and would not omit to
state a material fact required to be stated therein or necessary in
order to make the statements therein, in the light of the circumstances
under which they were made, not misleading and (C) as of the Closing
Date, the representations and warranties of the Company in this
Agreement are true and correct in all material respects, the Company
has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder on or prior to the Closing
Date, no stop order suspending the effectiveness of the Registration
Statement has been issued and no proceedings for that purpose have been
instituted or, to the best of such officer's knowledge, are
contemplated by the Commission, and subsequent to the date of the most
recent financial statements contained in the Registration Statement and
the Prospectus, there has been no material adverse change in the
financial position or results of operation of the Company or any of its
Subsidiaries, or any change, or any development including a prospective
change, in or affecting the condition (financial or otherwise), results
of operations, business or prospects of the Company and its
Subsidiaries taken as a whole, except as set forth in the Prospectus.
(l) All of the Rigas family members and affiliates listed on
Schedule 1 hereto shall have delivered to the Underwriter executed
lock-up letters, dated as of the date of the Prospectus, agreeing to
"lock-up" their shares of Class A common stock, subject to certain
exceptions, for a period of 70 days from the date of the Prospectus in
form and substance satisfactory to the Underwriter and its counsel.
(m) If any event shall have occurred that requires the Company
under Section 4(d) to prepare an amendment or supplement to the
Prospectus, such amendment or supplement shall have been prepared, the
Underwriter shall have been given a reasonable opportunity to comment
thereon, and copies thereof shall have been delivered to the
Underwriter reasonably in advance of the Closing Date.
(n) Subsequent to the date of this Agreement or, if earlier,
the dates as of which information is given in the Registration
Statement (exclusive of any amendment thereof) and the Prospectus
(exclusive of any supplement thereto dated after the date hereof),
there shall not have been (i) any change, or any development involving
a prospective change, in or affecting the condition (financial or
otherwise), earnings, business or properties of the Company and its
subsidiaries, taken as a whole, whether or not arising from
transactions in the ordinary course of business, except as set forth in
or contemplated in the Prospectus (exclusive of any supplement thereto
dated after the date hereof) or (ii) any downgrading in the rating of
any debt securities of the Company by any "nationally recognized
statistical rating organization" (as defined for purposes of Rule
436(g) under the Securities Act) or any public announcement 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, the effect of which, in any case referred to in clause
(i) or (ii) above, is, in the judgment of the Underwriter, so material
and adverse as to make it impractical or inadvisable to proceed with
the offering or delivery of the Shares as contemplated by the
Registration Statement (exclusive of any amendment thereof) and the
Prospectus (exclusive of any supplement thereto dated after the date
hereof).
(o) No action shall have been taken and no statute, rule,
regulation or order shall have been enacted, adopted or issued by any
governmental agency or body which would, as of the Closing Date,
prevent the issuance or sale of the Shares; and no injunction,
restraining order or order of any other nature by any federal or state
court of competent jurisdiction shall have been issued as of the
Closing Date which would prevent the issuance or sale of the Shares.
(p) The Class A Common Stock issuable upon conversion of the
Shares shall have been quoted or approved for quotation upon notice of
issuance on the Nasdaq National Market.
All opinions, letters, evidence and certificates mentioned
above or elsewhere in this Agreement shall be deemed to be in
compliance with the provisions hereof only if they are in form and
substance reasonably satisfactory to counsel for the Underwriter.
The obligations of the Underwriter to purchase and pay for any
Additional Shares shall be subject, in its discretion, to each of the
foregoing conditions to purchase the Firm Shares, except that all
references to the Firm Shares and the Closing Date shall be deemed to
refer to such Additional Shares and the Option Closing Date,
respectively.
6. Effectiveness and Termination. This Agreement shall become
effective upon the execution of this Agreement. The obligations of the
Underwriter hereunder may be terminated by the Underwriter in its absolute
discretion, by notice given to and received by the Company prior to delivery of
and payment for the Firm Shares if, prior to that time, any of the events
described in Section 5 shall have occurred and be continuing.
This Agreement shall be subject to termination in the absolute
discretion of the Underwriter, by notice given to the Company prior to delivery
of and payment for the Shares, if at any time prior to such time (i) trading in
the Company's Class A Common Stock shall have been suspended by the Commission
or the Nasdaq National Market or trading in securities generally on the New York
Stock Exchange or the Nasdaq National Market shall have been suspended or
materially limited or minimum prices shall have been established on either of
such Exchange or the Nasdaq National Market, (ii) a banking moratorium shall
have been declared either by Federal or New York State authorities or (iii)
there shall have occurred any outbreak or escalation of hostilities involving
the United States of America, declaration by the United States of a national
emergency or war, or other calamity or crisis the effect of which on financial
markets is so material as to make it, in the judgment of the Underwriter,
impractical or inadvisable to proceed with the offering or delivery of the
Shares as contemplated by the Prospectus (exclusive of any supplement thereto
dated after the date hereof).
7. Reimbursement of Underwriter's Expenses. If (a) the Company
shall fail to tender the Shares for delivery to the Underwriter for any reason
permitted under this Agreement or (b) the Underwriter shall decline to purchase
the Shares for any reason permitted under this Agreement, the Company shall
reimburse the Underwriter for such out-of-pocket expenses (including reasonable
fees and disbursements of counsel) as shall have been reasonably incurred by the
Underwriter in connection with this Agreement and the proposed public offering
and sale of the Shares, and upon demand the Company shall pay the full amount
thereof to the Underwriter.
8. Indemnification and Contribution.
(a) The Company shall indemnify and hold harmless the
Underwriter, its partners, directors and officers and each person, if
any, who controls the Underwriter within the meaning of Section 15 of
the Securities Act, against any losses, claims, damages or liabilities,
joint or several, to which the Underwriter may become subject, under
the Securities Act 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 any
material fact contained in any Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any related preliminary
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 will
reimburse the Underwriter for any legal or other expenses reasonably
incurred by the Underwriter in connection with investigating or
defending any such loss, claim, damage, liability or action as such
expenses are incurred; 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 an untrue statement or
alleged untrue statement in or omission or alleged omission from any of
such documents in reliance upon and in conformity with written
information furnished to the Company by the Underwriter specifically
for use therein, it being understood and agreed that the only such
information furnished by the Underwriter consists of the information
described as such in subsection (b) below.
(b) The Underwriter shall indemnify and hold harmless the
Company, its directors and officers and each person, if any who
controls the Company within the meaning of Section 15 of the Securities
Act, against any losses, claims, damages or liabilities to which the
Company may become subject, under the Securities Act 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 any material fact contained in any
Registration Statement, the Prospectus, or any amendment or supplement
thereto, or any related preliminary prospectus, or arise out of or are
based upon the omission or the alleged omission to state therein a
material fact required to be stated therein or necessary to make the
statements therein not misleading, in each case to the extent, but only
to the extent, that such untrue statement or alleged untrue statement
or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the
Underwriter specifically for use therein, and will reimburse any legal
or other expenses reasonably incurred by the Company in connection with
investigating or defending any such loss, claim, damage, liability or
action as such expenses are incurred, it being understood and agreed
that the only such information furnished by the Underwriter consists of
the following information in the Prospectus furnished on behalf of the
Underwriter: the sixth paragraph, the seventh paragraph, and the eighth
paragraph under the caption "Underwriting."
(c) Promptly after receipt by an indemnified party under
this Section 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 subsection (a) or (b) above,
notify the indemnifying party of the commencement thereof; but the
omission so to notify the indemnifying party will not relieve it from
any liability which it may have to any indemnified party otherwise than
under subsection (a) or (b) above. In case any such action is brought
against any indemnified party and it notifies the indemnifying party of
the commencement thereof, the indemnifying party will be entitled to
participate therein and, to the extent that it may wish, jointly with
any other indemnifying party similarly notified, to assume the defense
thereof, with counsel satisfactory to such indemnified party (who shall
not, except with the consent of the indemnified party, be counsel to
the indemnifying party), and after notice from the indemnifying party
to such indemnified party of its election so to assume the defense
thereof, the indemnifying party will not be liable to such indemnified
party under this Section for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying
party shall, without the prior written consent of the indemnified
party, effect any settlement of any pending or threatened action in
respect of which any indemnified party is or could have been a party
and indemnity could have been sought hereunder by such indemnified
party unless such settlement (i) includes an unconditional release of
such indemnified party from all liability on any claims that are the
subject matter of such action 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 an indemnified party. The indemnifying party shall not be
liable in any one claim or action or separate but substantially similar
or related claims or actions in the same jurisdiction for the expenses
of more than one separate counsel in additional to local counsel.
(d) If the indemnification provided for in this Section is
unavailable or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above, then each indemnifying party shall
contribute to the amount paid or payable by such indemnified party as a
result of the losses, claims, damages or liabilities referred to in
subsection (a) or (b) above (i) in such proportion as is appropriate to
reflect the relative benefits received by each party to this agreement
from the offering of the Shares or (ii) if the allocation provided by
clause (i) above is not permitted by applicable law, in such proportion
as is appropriate to reflect not only the relative benefits referred to
in clause (i) above but also the relative fault of each party to this
agreement in connection with the statements or omissions which resulted
in such losses, claims, damages or liabilities as well as any other
relevant equitable considerations. The relative benefits received by
the Company and the Underwriter shall be deemed to be in the same
proportion as the total net proceeds from the offering (before
deducting expenses) received by the Company bear to the total
underwriting discounts and commissions received by the Underwriter. The
relative fault shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company on one hand or the Underwriter on
the other and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement
or omission. The amount paid by an indemnified party as a result of the
losses, claims, damages or liabilities referred to in the first
sentence of this subsection (d) shall be deemed to include any legal or
other expenses reasonably incurred by such indemnified party in
connection with investigating or defending any action or claim which is
the subject of this subsection (d). Notwithstanding the provisions of
this subsection (d), the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price
at which the Shares underwritten by it and distributed to the public
were offered to the public exceeds the amount of any damages which the
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 Securities Act) shall be entitled to contribution from any
person who was not guilty of such fraudulent misrepresentation. The
Underwriter's obligations in this subsection (d) to contribute are
several in proportion to its respective underwriting obligations and
not joint.
(e) The obligations of the Company under this Section shall
be in addition to any liability which the Company may otherwise have
and shall extend, upon the same terms and conditions, to each person,
if any, who controls the Underwriter within the meaning of the Act; and
the obligations of the Underwriter under this Section shall be in
addition to any liability which the Underwriter may otherwise have and
shall extend, upon the same terms and conditions, to each director of
the Company, to each officer of the Company who has signed a
Registration Statement and to each person, if any, who controls the
Company within the meaning of the Securities Act.
9. Persons Entitled to Benefit of Agreement. This Agreement
shall inure to the benefit of and be binding upon the Underwriter, the Company
and their respective successors. This Agreement and the terms and provisions
hereof are for the sole benefit of only those persons, except as provided in
Sections 9 and 12 with respect to affiliates, officers, directors, employees,
representatives, agents and controlling persons of the Company and the
Underwriter. Nothing in this Agreement is intended or shall be construed to give
any person, other than the persons referred to in this Section 9, any legal or
equitable right, remedy or claim under or in respect of this Agreement or any
provision contained herein.
10. Expenses. The Company agrees with the Underwriter to pay
(a) the costs incident to the authorization, issuance, sale, preparation and
delivery of the Shares and any taxes payable in that connection; (b) the costs
incident to the preparation, printing and filing under the Securities Act of the
Registration Statement and any amendments and exhibits thereto; (c) the costs of
printing and distributing the Registration Statement as originally filed and
each amendment thereto and any post-effective amendments thereof (including, in
each case, exhibits) and the Prospectus and any amendment or supplement thereto,
all as provided in this Agreement; (d) the costs of printing, reproducing and
distributing this Agreement and any underwriting and selling group documents;
(e) the filing fees incident to securing any required review by the National
Association of Securities Dealers, Inc. of the terms of sale of the Shares; (f)
the fees and expenses of the Company's counsel and independent accountants; (g)
the fees and expenses of preparing, printing and distributing Blue Sky Memoranda
(including related fees and expenses of counsel to the Underwriter); (h) the
registration of the Class A Common Stock and the Shares under the Securities Act
and the quotation of the Class A Common Stock and the Shares on the Nasdaq
National Market; (i) the transportation and other expenses incurred by or on
behalf of Company representatives in connection with presentations to
prospective purchasers of the Shares; and (j) all other costs and expenses
incident to the performance of the obligations of the Company under this
Agreement; provided that, except as provided in this Section 10 and Section 7,
the Underwriter shall pay its own costs and expenses.
11. Survival. The respective indemnities, rights of
contribution, representations, warranties and agreements of the Company and the
Underwriter contained in this Agreement or made by or on behalf of the Company
or the Underwriter pursuant to this Agreement or any certificate delivered
pursuant hereto shall survive the delivery of and payment for the Shares and
shall remain in full force and effect, regardless of any termination or
cancellation of this Agreement or any investigation made by or on behalf of any
of them or any of their respective affiliates, officers, directors, employees,
representatives, agents or controlling persons.
12. Notices, etc. All statements, requests, notices and
agreements hereunder shall be in writing, and:
(a) if to the Underwriter, shall be delivered or sent by mail
or telecopy transmission to ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Inc., ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: General Counsel (fax
number: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇ (telecopier no.: (▇▇▇) ▇▇▇-▇▇▇▇);
(b) if to the Company, shall be delivered or sent by mail or
telecopy transmission to the address of the Company set forth in the
Registration Statement, Attention: Chief Financial Officer (telecopier
no.: (▇▇▇) ▇▇▇-▇▇▇▇), with a copy to ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Professional
Corporation, One Oxford Centre, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇, Attention ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇▇,
▇▇..
Any such statements, requests, notices or agreements shall take effect at the
time of receipt thereof. The Company shall be entitled to act and rely upon any
request, consent, notice or agreement given or made by the Underwriter.
13. Definition of Terms. For purposes of this Agreement,
(a) the term "business day" means any day on which the New York Stock Exchange,
Inc. is open for trading and (b) the term "subsidiary" has the meaning set forth
in Rule 405 under the Securities Act.
14. Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York.
15. Counterparts. This Agreement may be executed in
one or more counterparts (which may include counterparts delivered by
telecopier) and, if executed in more than one counterpart, the executed
counterparts shall each be deemed to be an original, but all such counterparts
shall together constitute one and the same instrument.
16. Amendments. No amendment or waiver of any provision
of this Agreement, nor any consent or approval to any departure therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
parties hereto.
17. Headings. The headings herein are inserted for
convenience of reference only and are not intended to be part of, or to affect
the meaning or interpretation of, this Agreement.
[Signature Pages Follow]
If the foregoing is in accordance with your understanding of
our agreement, kindly sign and return to us a counterpart hereof, whereupon this
instrument will become a binding agreement among each of the Company and the
Underwriter in accordance with its terms.
Very truly yours,
ADELPHIA COMMUNICATIONS CORPORATION
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Executive Vice President
UNDERWRITING AGREEMENT
The foregoing Underwriting Agreement is hereby confirmed and accepted as of the
date first above written:
By: ▇▇▇▇▇▇▇ ▇▇▇▇▇ BARNEY INC.
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. Clipper
Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. Clipper
Title: Vice President
SCHEDULE 1
▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
Dorellenic
Eleni Acquisition Inc.
▇▇▇▇▇ Holdings, L.P.
Highland Holdings
Highland Holdings II
Highland 2000, L.P.