EXHIBIT 1.2
TELE-COMMUNICATIONS, INC.
UNDERWRITING AGREEMENT
FOR DEBT SECURITIES
__________ ___, 19__
[To the Underwriter or Underwriters]
Dear Sirs:
Tele-Communications, Inc. (the "Company") proposes to issue and sell [
] principal amount of its (the "Offered Securities") pursuant to an
indenture dated as of , ([as amended and] as the same may be [further]
amended or supplemented, the "Indenture"), with , as trustee (the
"Trustee"). Each Offered Security will be issuable in the denominations and
shall have the terms set forth in Exhibit A. [The term "Underwriters" as used
herein will mean and refer collectively to one or more several Underwriters
named in Exhibit B (and any substitute underwriter pursuant to Section 9
hereof), the term "Underwriter" will refer to any of the several Underwriters
named in Exhibit B (and any substitute underwriter pursuant to Section 9
hereof), and the term "Representatives" will refer to you in your capacity as
the Representatives of the several Underwriters or, in the event no
Representatives shall have been appointed, in your capacity as Underwriters.
Any reference to you in this Agreement shall be solely in your capacity as
Representatives.] The Company confirms as follows its agreement with you and
the Underwriter[s].
1. Registration Statement and Prospectus: The Company has filed with the
Securities and Exchange Commission (the "Commission"), in accordance with the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder (collectively called the "Act"), a shelf
registration statement on Form S-3 (File No. 333- ), including a prospectus,
relating to, among other securities, debt securities of the Company ("Debt
Securities") issuable from time to time in one or more series, [including the
Offered Securities] and shares of Series A TCI Group Common Stock, $1.00 par
value per share, of the Company ("Common Stock") issuable from time to time upon
conversion of convertible Debt Securities, [including the shares (the "Common
Shares") issuable upon conversion of the Offered Securities,] which has become
effective under the Act, and will promptly file with the Commission a prospectus
supplement specifically relating to the Offered Securities pursuant to Rule 424
under the Act. As used in this Agreement, the term "Registration Statement"
means such shelf registration statement, including exhibits and financial
statements and schedules and documents incorporated by reference therein, as
amended or supplemented to the date hereof and, in the case of references to the
Registration Statement as of a date subsequent to the date hereof, as amended or
supplemented as of such date. The term "Basic Prospectus" means the prospectus,
dated ____________, _____, as filed with the Commission pursuant to Rule 424
under the Act and forming part of the Registration Statement. The term
"Prospectus" means the Basic Prospectus together with the prospectus supplement
specifically relating to the Offered Securities as filed with the Commission
pursuant to Rule 424 under the Act and any information deemed to be a part
thereof pursuant to Rule 434 under the Act. The term "preliminary prospectus"
means any preliminary prospectus supplement specifically relating to the Offered
Securities together with the Basic Prospectus. Any reference herein to any
preliminary prospectus or the Prospectus shall be deemed to refer to and include
the documents incorporated by reference therein pursuant to Item 12 of Form S-3
under the Act, as of the date of such preliminary prospectus or the Prospectus,
as the case may be, and any reference herein to any amendment or supplement to
any preliminary prospectus or the Prospectus, except the reference in Section
4(c), shall be deemed to refer to and include any documents filed after such
date under the Securities Exchange Act of 1934, as amended (the "Exchange Act"),
and so incorporated by reference.
2. Agreements to Sell and Purchase: The Company agrees to sell to the
Underwriters, and upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to the terms and
conditions of this Agreement each of the Underwriters agrees to purchase from
the Company, severally and not jointly, the principal amount of Offered
Securities set forth opposite each Underwriter's respective name in Exhibit B,
at a purchase price per Offered Security of $ , plus accrued
[interest][original issued discount] from .
With respect to any of the Offered Securities purchased by you hereunder
that you continue to own or hold at any time on or after the 90th day following
the Closing Date (as defined in Section 3), you agree that upon receipt of
written notice from the Company of its intention to bid for or purchase any
Offered Security or any security of the same class and series as the Offered
Securities or to take any other action, directly or indirectly, the taking of
which would be proscribed by Rule 10b-6 promulgated by the Commission under the
Exchange Act (or any successor or equivalent rule or regulation) during the
distribution of the Offered Securities, you will, and will cause your
"affiliated purchasers" (as defined in said Rule) to, cease distributing the
Offered Securities for such period of time as the Company may deem necessary so
that the action or actions proposed to be taken, directly or indirectly, by it
may be taken in full compliance with such Rule (or any successor or equivalent
rule or regulation).
3. Delivery and Payment: Delivery of and payment for the Offered
Securities shall be made at 10:00 A.M., New York time, on ______________, 19__
(such time and date are referred to herein as the "Closing Date"), at the
offices of ▇▇▇▇▇ & ▇▇▇▇▇, LLP, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. The
Closing Date and the place of delivery of and payment for the Offered Securities
may be varied by agreement between you and the Company.
Delivery of the Offered Securities (in definitive form and registered in
such names and in such authorized denominations as you shall request at least 48
hours prior to the Closing Date by written notice to the Company) shall be made
to you against payment by you of the purchase price therefor by cashier or
official bank check or checks payable to the order of the Company in New York
Clearing House (next day) funds. For the purpose of expediting the checking and
packaging of the Offered Securities, the Company agrees to make the Offered
Securities available to you for
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inspection at least 24 hours prior to the Closing Date or such shorter period of
time as you may agree to.
4. Agreements of the Company: The Company agrees with you as follows:
(a) The Company will notify you promptly, and (if requested by you in
writing) will confirm such advice in writing, during the period of the
distribution of the Offered Securities (1) of the effectiveness of any amendment
to the Registration Statement and of the filing of any supplement to the
Prospectus, (2) of any comments of the Commission regarding the Registration
Statement or the Prospectus (or any of the documents incorporated by reference
therein) or of any request by the Commission for amendments or supplements to
the Registration Statement or the Prospectus or for additional information, (3)
of the issuance by the Commission of any stop order suspending the effectiveness
of the Registration Statement or the initiation or threatening of any
proceedings for that purpose, (4) of the receipt by the Company of any
notification with respect to the suspension of the qualification of the Offered
Securities [or the Common Shares] for offer or sale in any jurisdiction or the
initiation or threatening of any proceedings for such purpose and (5) of the
happening of any event during the period mentioned in paragraph (d) below which
makes any statement of a material fact made in the Registration Statement or the
Prospectus (as theretofore amended or supplemented) untrue or which requires the
making of any changes in the Registration Statement or the Prospectus (as
theretofore amended or supplemented) in order to make the statements therein, in
light of the circumstances when the Prospectus is delivered to a purchaser, not
misleading. The Company will use its reasonable best efforts to prevent the
issuance of any order suspending the effectiveness of the Registration Statement
or suspending the qualification of the Offered Securities [or the Common Shares]
for offer or sale in any jurisdiction, and if any such order is issued, the
Company will make every reasonable effort to obtain the withdrawal of such order
at the earliest possible moment.
(b) The Company will furnish to each of you, without charge, one conformed
copy of the Registration Statement and any post-effective amendment thereto
filed in connection with the offering of the Offered Securities, including all
financial statements and schedules, exhibits and documents incorporated therein
by reference (including exhibits incorporated therein by reference to the extent
not previously furnished to you).
(c) The Company will give you advance notice of its intention to file any
amendment or supplement to the Registration Statement or the Prospectus with
respect to the Offered Securities, and will not file any such amendment or
supplement to which you shall reasonably object in writing.
(d) During the period of time that the Prospectus is required by law to be
delivered, the Company will deliver to each Underwriter, without charge, as many
copies of the Prospectus or any amendment or supplement thereto as such
Underwriter may reasonably
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request. The Company consents to the use of the Prospectus or any amendment or
supplement thereto by the Underwriters and by all dealers to whom the Offered
Securities may be sold, both in connection with the offering or sale of the
Offered Securities and for such period of time thereafter as the Prospectus is
required by law to be delivered in connection therewith. If during such period
of time any event shall occur which in the judgment of the Company should be set
forth (or incorporated by reference) in the Prospectus in order to make the
statements therein, in light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to supplement or
amend the Prospectus to comply with law, the Company will forthwith prepare and
duly file with the Commission an appropriate supplement or amendment thereto,
and forthwith file all reports and any definitive proxy statement or information
statement required to be filed by the Company with the Commission pursuant to
Section 13 or 14 of the Exchange Act subsequent to the date of the Prospectus
and during such period, and will deliver to each Underwriter, without charge,
such number of copies thereof as such Underwriter may reasonably request. If
during such period of time any event shall occur which in your judgment should
be so set forth (or incorporated by reference) in the Prospectus, or which in
your judgment makes it necessary to so supplement or amend the Prospectus, the
Company will consult with you concerning the necessity of filing with the
Commission a supplement or an amendment to the Prospectus or a report pursuant
to Section 13 or 14 of the Exchange Act.
(e) Prior to any public offering of the Offered Securities by the
Underwriters, the Company will cooperate with you and your counsel in connection
with the registration or qualification of the Offered Securities [and the Common
Shares] for offer and sale under the securities or Blue Sky laws of, and the
determination of the eligibility of the Offered Securities for investment under
the laws of, such jurisdictions as you request; provided, that in no event shall
the Company be obligated to qualify to do business as a foreign corporation or
as a securities dealer in any jurisdiction where it is not now so qualified, to
conform its capitalization or the composition of its assets to the securities or
Blue Sky laws of any jurisdiction or to take any action which would subject it
to taxation or general service of process in any jurisdiction where it is not
now so subject. The Company will pay all reasonable fees and expenses
(including reasonable counsel fees and expenses) relating to qualification of
the Offered Securities [and the Common Shares] under such securities or Blue Sky
laws and in connection with the determination of the eligibility of the Offered
Securities for investment under the laws of such jurisdictions as you may
designate.
(f) The Company will make generally available to its security holders and
to you consolidated earnings statements (which need not be audited) that satisfy
the provisions of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will pay all expenses in connection with (1) the
preparation, printing and filing of the Registration Statement, any preliminary
prospectus, the Prospectus, any legal investment memorandum and Blue Sky
memorandum as contemplated by Section
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4(e), (2) the preparation, issuance and delivery of the Offered Securities
(other than transfer taxes) and the execution and delivery of the Indenture, (3)
the printing of any Dealer Agreement, (4) furnishing such copies of the
Registration Statement, the Prospectus and any preliminary prospectus, and all
amendments and supplements thereto, as may be requested for use in connection
with the offering and sale of the Offered Securities by dealers to whom Offered
Securities may be sold, and (5) any fees paid to rating agencies, if any,
selected by the Company in connection with the rating of the Offered Securities.
(h) If this Agreement is terminated by you because any condition to the
obligations of the Underwriters set forth in Section 7 hereof is not satisfied
or because of any failure or refusal on the part of the Company to comply with
the terms hereof or if for any reason the Company shall be unable to perform its
obligations hereunder, the Company will reimburse the Underwriter[s] for all
out-of-pocket expenses (including the fees and expenses of your counsel)
reasonably incurred by the Underwriter[s] in connection herewith. The Company
will not in any event be liable to you [or any of the Underwriters] for damages
on account of loss of anticipated profits.
(i) From the date hereof to and including the Closing Date, the Company
will not offer or sell, or contract to sell, any Debt Securities of the Company
with a maturity of more than one year, including additional Offered Securities,
pursuant to a public offering without your prior written consent.
5. Representations and Warranties of the Company: The Company represents
and warrants to each Underwriter that:
(a) the documents incorporated by reference in the Registration Statement
and the Prospectus, when they were filed (or, if an amendment with respect to
any such document was filed, when such amendment was filed) with the Commission,
conformed in all material respects to the requirements of the Exchange Act and
the rules and regulations of the Commission promulgated thereunder, and any
further documents so filed and incorporated by reference during the period of
the distribution of the Offered Securities will, when they are filed with the
Commission, conform in all material respects to the requirements of the Exchange
Act and the rules and regulations of the Commission promulgated thereunder, none
of such documents, when it was filed (or, if an amendment with respect to any
such document was filed, when such amendment was filed), contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading; and no such further
document, when it is filed, will contain an untrue statement of a material fact
or will omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
are made, not misleading;
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(b) the Registration Statement, when declared effective by the Commission,
complied in all material respects with the requirements of the Act; each
preliminary prospectus, if any, relating to the Offered Securities, filed
pursuant to Rule 424 or Rule 434 under the Act, will comply when so filed in all
material respects with the Act; and when the Prospectus or any term sheet is
first filed with the Commission pursuant to Rule 424 or Rule 434 and as of the
Closing Date, the Registration Statement and the Prospectus (as amended or
supplemented, if applicable) will comply in all material respects with the
requirements of the Act and the Indenture will comply in all material respects
with the requirements of the Trust Indenture Act of 1939, as amended (the "Trust
Indenture Act"). When it was declared effective by the Commission, the
Registration Statement did not, and as of the date the Prospectus is first filed
with the Commission pursuant to Rule 424 or Rule 434 and as of the Closing Date
the Registration Statement (as amended or supplemented, if applicable) will not,
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein not
misleading. When the Prospectus is first filed with the Commission pursuant to
Rule 424 or Rule 434 and as of the Closing Date, the Prospectus (as amended or
supplemented, if applicable) will not contain an untrue statement of a material
fact or omit to state a material fact required to be stated therein or necessary
to make the statements therein, in light of the circumstances under which they
were made, not misleading. Notwithstanding the foregoing, this representation
and warranty does not apply to statements or omissions in the Registration
Statement or the Prospectus or any preliminary prospectus made in reliance upon
information furnished to the Company in writing by any Underwriter through you
expressly for use therein or to that part of the Registration Statement which
consists of the Statements of Eligibility on Form T-1 under the Trust Indenture
Act of the trustees for the Debt Securities;
(c) the Offered Securities and the Indenture have been duly authorized by
the Company and conform to the descriptions thereof in the Prospectus;
(d) the issuance and sale of the Offered Securities and the fulfillment of
the terms of this Agreement will not result in a breach of any of the terms of
provisions of, or constitute a default under, the Company's charter or by-laws
or any indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company or any of its significant subsidiaries (as such
term is defined in Rule 1.02(v) of Regulation S-X) is now a party or by which it
is bound, or any order of any court or governmental agency or authority entered
in any proceeding to which the Company or any of its significant subsidiaries
was or is now a party or by which it is bound;
(e) KPMG Peat Marwick LLP, the Company's auditors, are independent
accountants as required by the Act;
(f) so long as may be required for the distribution of the Offered
Securities by the Underwriters or by any dealers that participate in the
distribution thereof, the Company will comply with all requirements under the
Exchange Act relating to the timely filing with
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the Commission of its reports pursuant to Section 13 of the Exchange Act and of
its proxy statements pursuant to Section 14 of the Exchange Act; [and]
(g) except to the extent set forth in the Prospectus, the Company has not
received any notice of, nor does it have any actual knowledge of, any failure by
it or any of its significant subsidiaries to be in substantial compliance with
all existing statutes and regulations applicable to it or such subsidiaries,
which failure would materially and adversely affect the conduct of the business
of the Company and its subsidiaries, considered as a whole[; and]
[ (h) the Company has reserved a sufficient number of Common Shares to cover
the conversion of all the Offered Securities at the initial conversion
[price][rate] (prior to any adjustment of such [price][rate] pursuant to the
Offered Securities and the Indenture); the Common Shares when issued or
delivered upon conversion of the Offered Securities will be duly and validly
authorized, issued, fully paid and non-assessable; and the Common Shares are
free of preemptive rights].
6. Indemnification: The Company agrees to indemnify and hold harmless
each Underwriter, and each person, if any, who controls each Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto or in any preliminary prospectus, or arising out of or based upon any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading, except insofar as such
losses, claims, damages, liabilities or expenses arise out of or are based upon
any such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by any Underwriter through you
expressly for use therein; provided, however, the Company shall not indemnify
any Underwriter or any person who controls such Underwriter from any such
losses, claims, damages or liabilities alleged by any person who purchased
Offered Securities from such Underwriter if the untrue statement, omission or
allegation thereof upon which such losses, claims, damages or liabilities are
based was made in: (i) any preliminary prospectus, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of Offered Securities to such person, and if the Prospectus (as so amended or
supplemented) corrected the untrue statement or omission giving rise to such
loss, claim, damage or liability; (ii) any Prospectus used by such Underwriter
or any person who controls such Underwriter, after such time as the Company
advised you that the filing of a post-effective amendment or supplement thereto
was required, except the Prospectus as so amended or supplemented; or (iii) any
Prospectus used after such time as the obligation of the Company to keep the
same current and effective has expired. This indemnity will be in addition to
any liability which
7
the Company may otherwise have. All fees and expenses which are reimbursable
pursuant to this Section 6 shall be reimbursed as they are incurred.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against any Underwriter or any person controlling
an Underwriter in respect of which indemnity may be sought from the Company,
such Underwriter or such controlling person shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to you and the payment of all
expenses. Any omission so to notify the Company shall not, however, relieve the
Company from any liability which it may have to any indemnified party otherwise
than under this Section 6. Any such Underwriter or any such person controlling
an Underwriter shall have the right to employ separate counsel in any such
action or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be such Underwriter's expense or the
expense of such controlling person unless (a) the Company has agreed to pay such
fees and expenses or (b) the Company shall have failed to assume the defense of
such action or proceeding and employ counsel reasonably satisfactory to you in
any such action or proceeding or (c) the named parties to any such action or
proceeding (including any impleaded parties) include both such Underwriter or
such controlling person and the Company, and you shall have been advised by your
counsel that there may be a conflict of interest between such Underwriter or
controlling person and the Company in the conduct of the defense of such action
(in which case, if such Underwriter or such controlling person notifies the
Company in writing that it elects to employ separate counsel at the expense of
the Company, the Company shall not have the right to assume the defense of such
action or proceeding on behalf of such Underwriter or such controlling person),
it being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (unless the members of such firm are not admitted to
practice in a jurisdiction where an action is pending, in which case the Company
shall pay the reasonable fees and expenses of one additional firm of attorneys
to act as local counsel in such jurisdiction, provided the services of such
counsel are substantially limited to that of appearing as attorneys of record)
at any time for all indemnified parties, which firm shall be designated in
writing by you. The Company shall not be liable for any settlement of any such
action or proceeding effected without its written consent, but if settled with
its written consent, or if there be a final judgment for the plaintiff in any
such action or proceeding, the Company agrees to indemnify and hold harmless
each Underwriter and any such controlling person from and against any loss or
liability by reason of such settlement or judgment. The Company shall not effect
any settlement of any pending or threatened proceeding in respect of which any
Underwriter is or could have been a party and indemnity could have been sought
hereunder by such Underwriter, unless such settlement includes an unconditional
release of such Underwriter from all liability on claims that are the subject
matter of such proceeding.
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors and each of its officers, and each person, if any, who
controls the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent as the foregoing
8
indemnity from the Company to each Underwriter, but only with respect to
information furnished in writing by such Underwriter expressly for use in the
Registration Statement, the Prospectus, or any amendment or supplement thereto,
or any preliminary prospectus. In case any action or proceeding shall be
brought against the Company or its directors or officers or any such controlling
person, in respect of which indemnity may be sought against one or more of the
several Underwriters, such Underwriters acting through the Representatives shall
have the rights and duties given to the Company, and the Company or its
directors or officers or such controlling person shall have the rights and
duties given to you and the several Underwriters, by the preceding paragraph.
If the indemnification provided for in this Section 6 is unavailable to an
indemnified party under the first or third paragraph hereof in respect of any
losses, claims, damages or liabilities referred to therein (other than by reason
of such indemnified party's failure to comply with the first sentence of the
second paragraph of this Section 6), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii) if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other 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 on the one hand and the Underwriters on the other in connection
with the Offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered Securities
received by the Company bear to the total underwriter discounts received by the
Underwriters in respect thereof. The relative fault of the Company on the one
hand and of the Underwriters on the other 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 or by the Underwriters through you and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include, subject to the limitations set forth in the
second paragraph of this Section 6, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim.
The Company and each Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6, the Underwriters shall be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities were offered to the public exceeds the
amount of any damages which the Underwriters have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation
9
(within the meaning of Section 11(f) of the Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation.
The indemnity and contribution agreements contained in this Section 6 and
the representations and warranties of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (a) any
investigation made by or on behalf of the Underwriters, by or on behalf of any
person controlling any Underwriter or by or on behalf of the Company, (b)
acceptance of any of the Offered Securities and payment therefor or (c) any
termination of this Agreement.
7. Conditions of the Underwriters' Obligations: The Underwriters'
obligations hereunder are subject to the following conditions:
(a) at the Closing Date, [(i)] no stop order suspending the effectiveness
of the Registration Statement shall have been issued and no proceedings for that
purpose shall be pending or threatened by the Commission; and you shall have
received a certificate, dated the Closing Date and signed by the Chairman of the
Board, the President, an Executive Vice President or the Senior Vice President-
Finance and Treasurer of the Company (who may, as to threatened proceedings,
rely upon the best of his information and belief), to that effect and to the
effect set forth in clause (e) of this Section 7 [(with respect to Senior Debt
Securities only), and (ii) the rating assigned by either Duff & ▇▇▇▇▇▇ Credit
Rating Co. or its successor or by ▇▇▇▇▇'▇ Investors Service, Inc. or its
successor to any debt securities of the Company as of the date of this Agreement
shall not have been lowered since that date];
(b) you shall have received opinions, dated the Closing Date and reasonably
satisfactory to counsel retained for the Underwriters, (A) from Messrs. ▇▇▇▇,
Raywid & ▇▇▇▇▇▇▇▇▇, L.L.P. or such other special communications counsel for the
Company as may be reasonably satisfactory to you, (B) from the General Counsel
of the Company to the following effect and covering such additional matters as
the Representatives may reasonably request:
(i) the Company and each of its significant subsidiaries is a corporation
duly organized, validly existing and in good standing under the laws of the
jurisdiction of its incorporation and has the corporate power and authority to
carry on its business as described in the Prospectus (as amended or
supplemented, if applicable) and the Company has the corporate power and
authority to execute and deliver and perform its obligations under this
Agreement and to issue and sell the Offered Securities as contemplated by this
Agreement;
(ii) the Company and each of its significant subsidiaries is duly qualified
as a foreign corporation and is in good standing in each jurisdiction in which
the failure to so qualify would, in the aggregate, have a material adverse
effect upon the
10
financial condition, results of operations, business or properties of the
Company and its subsidiaries taken as a whole;
(iii) all corporate proceedings legally required in connection with the
authorization and issuance of the Offered Securities and the sale of the Offered
Securities by the Company in accordance with the terms of this Agreement have
been taken;
(iv) to the best knowledge of such counsel, there is no legal or
governmental proceeding pending or threatened against the Company or any of its
subsidiaries which is required to be disclosed in the Prospectus (as amended or
supplemented, if applicable) and is not so disclosed and correctly summarized
therein;
(v) to the best knowledge of such counsel, there is no contract or other
document known to such counsel of a character required to be described in the
Prospectus (as amended or supplemented, if applicable) or to be filed as an
exhibit to the Registration Statement (or to a document incorporated by
reference therein) that is not described or filed as required;
(vi) the execution and delivery of this Agreement and the Indenture, the
issuance of the Offered Securities and the fulfillment of the terms herein and
therein contained do not conflict with, or result in a breach of, or constitute
a default under, the charter or by-laws of the Company or, to the best knowledge
of such counsel, conflict in any material respect with, or result in a material
breach of or constitute a material default under any material agreement,
indenture or other instrument known to such counsel to which the Company or any
of its significant subsidiaries is a party or by which it is bound, or result in
a violation of any law, administrative regulation or court or governmental
decree known to such counsel applicable to the Company or any of its
subsidiaries, except that such counsel need not express any opinion with respect
to (i) matters opined upon by special communications counsel and Messrs. ▇▇▇▇▇▇▇
& ▇▇▇▇▇▇ or (ii) the Blue Sky or securities laws of any jurisdiction; [and]
(vii) to the best knowledge of such counsel, neither the Registration
Statement nor the Prospectus, as amended or supplemented, if applicable (except
as to the financial statements and schedules and any other financial and
statistical data contained and incorporated by reference in the Registration
Statement or Prospectus, as to which no opinion need be expressed), contained,
as of the date the Prospectus was first filed with the Commission pursuant to
Rule 424, or contains, as of the Closing Date, any untrue statement of a
material fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein (in the case of the Prospectus (as
amended or supplemented, if applicable), in light of the circumstances under
which they were made,) not misleading[; and
11
(viii) The Company has reserved a sufficient number of the Common Shares to
cover the conversion of all the Offered Securities at the initial conversion
[price] [rate] (prior to any adjustment of such [price] [rate] pursuant to the
Offered Securities and the Indenture), and such Common Shares, when so delivered
upon such conversion in accordance with the terms and provisions of the Offered
Securities and the Indenture, assuming no change in the applicable law or
pertinent facts, will be duly and validly authorized, issued, fully paid and
non-assessable].
(C) from Messrs. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, special counsel to the Company, to the
following effect and covering such additional matters as you may reasonably
request:
(i) the execution and delivery of this Agreement and the Indenture, the
issuance of the Offered Securities and the fulfillment of the terms herein and
therein contained do not, to the best knowledge of such counsel, result in a
material breach of or constitute a material default under any material agreement
for borrowed money known to such counsel to which the Company or any of its
significant subsidiaries is a party or by which it is bound; and
(ii) the Company is not an "investment company" within the meaning of the
Investment Company Act of 1940, as amended, and is not subject to regulation
under such Act.
and (D) from ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., special counsel to the Company, or such
other counsel to the Company as may be reasonably satisfactory to you, to the
following effect and covering such additional matters as you may reasonably
request:
(i) this Agreement and the Indenture have been duly authorized, executed
and delivered by the Company; and the Indenture is a legal, valid and binding
agreement of the Company enforceable in accordance with its terms, except (A) as
such enforceability may be limited by bankruptcy, insolvency, reorganization,
fraudulent conveyance, moratorium and other laws affecting creditors' rights
generally, and (B) that the remedy of specific performance and injunctive and
other forms of equitable relief are subject to certain equitable defenses and to
the discretion of the court before any proceeding therefor may be brought;
(ii) the Indenture has been duly qualified under, and complies in all
material respects with the requirements of, the Trust Indenture Act;
(iii) the Offered Securities, when executed and authenticated in
accordance with the terms of the Indenture and delivered to and paid for by the
Underwriters in accordance with this Agreement, will be legal, valid and binding
obligations of the Company entitled to the benefits of the Indenture and
enforceable in accordance with their terms, except (A) as such enforceability
may be limited by bankruptcy,
12
insolvency, reorganization, fraudulent conveyance, moratorium and other laws
affecting creditors' rights generally, and (B) that the remedy of specific
performance and injunctive and other forms of equitable relief are subject to
certain equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought;
(iv) the Registration Statement is effective under the Act and, to the best
knowledge of such counsel, no stop order suspending the effectiveness of the
Registration Statement has been issued and no proceeding for that purpose is
pending or threatened by the Commission; and
(v) the Offered Securities[, the Common Stock] and the Indenture conform in
all material respects as to legal matters to the descriptions thereof in the
Prospectus.
In addition, such counsel shall state that: "The Registration Statement and
the Prospectus, as amended or supplemented, if applicable (except as to (x) the
financial statements and schedules and any other financial and statistical data
contained or incorporated by reference therein and (y) the documents
incorporated or deemed to be incorporated by reference therein, as to which no
opinion is expressed), complied, as of the date the Prospectus was first filed
with the Commission pursuant to Rule 424, and comply, as of the date hereof, as
to form in all material respects with the requirements of the Act and the rules
and regulations of the Commission under the Act (the "Rules"). In passing upon
the form of such documents, we have necessarily assumed the correctness and
completeness of the statements made or included therein by the Company and take
no responsibility for the accuracy, completeness or fairness of the statements
contained therein except insofar as such statements relate to the description of
the Offered Securities and the Indenture or relate to us. However, in
connection with the preparation of the Registration Statement and the
Prospectus, we had conferences with certain officers and other representatives
of the Company, and our examination of the Registration Statement and the
Prospectus and our discussions in such conferences did not disclose to us any
information (relying as to the materiality of any such information primarily
upon officers and other representatives of the Company) which gave us reason to
believe that either the Registration Statement or the Prospectus, as amended or
supplemented, if applicable (except as to (x) the financial statements and
schedules and any other financial and statistical data contained or incorporated
by reference in the Registration Statement or the Prospectus and (y) the
documents incorporated or deemed to be incorporated by reference therein, as to
which no opinion is expressed), contained, as of the date the Prospectus was
first filed with the Commission pursuant to Rule 424, or contains, as of the
date hereof, any untrue statement of a material fact or omitted or omits to
state any material fact required to be stated therein or necessary to make the
statements
13
therein (in the case of the Prospectus, as amended or supplemented, if
applicable, in light of the circumstances under which they were made,) not
misleading."
In giving such opinions, such counsel may rely (x) as to matters of fact,
to the extent they deem proper, upon certificates of officers of the Company,
public officials and others, and (y) as to matters of law if other than the
United States or Colorado (in the case of Messrs. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇ and General
Counsel of the Company) or New York (in the case of ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P.), on
the opinions of local counsel retained by them or the Company, provided that
such counsel are satisfactory to you and counsel for the Underwriters;
(c) you shall have received on the Closing Date from counsel retained by
you on behalf of the Underwriters an opinion to the effect set forth in clauses
(D)(i) and (iii) and to the effect that the Registration Statement and the
Prospectus, as amended or supplemented, if applicable, (except as to (x) the
financial statements and schedules and any other financial and statistical data
contained or incorporated by reference therein, and (y) the documents
incorporated or deemed to be incorporated to be incorporated by reference
therein, as to which no opinion need be expressed) comply as to form in all
material respects with the Act. In addition, you shall have received on the
Closing Date from such counsel an opinion with respect to the Registration
Statement and the Prospectus in the form customarily given by such firm;
(d) on the Closing Date you shall have received a letter addressed to the
Representatives from KPMG Peat Marwick LLP, independent auditors for the
Company, reasonably satisfactory to you; and
(e) the representations and warranties of the Company in this Agreement
shall be true and correct on and as of the Closing Date; the Company shall have
complied with all agreements and satisfied all conditions on its part to be
performed or satisfied at or prior to the Closing Date; and except as reflected
in or contemplated by the Registration Statement and the Prospectus, since the
respective dates as of which information is given in the Registration Statement
and the Prospectus, there shall not have been, at the Closing Date, any material
adverse changes in the condition (financial or otherwise), business, prospects
or results of operations of the Company and its subsidiaries, considered as a
whole; and
(f) subsequent to the date of this Agreement, there shall not have occurred
any change, or any development involving a prospective change, in or affecting
particularly the business, prospects or financial affairs of the Company and its
subsidiaries, considered as a whole truth, in your reasonable judgment, is so
material and adverse that it would be impracticable to proceed with the public
offering or delivery of the Offered Securities on the terms and in the manner
contemplated by the Prospectus.
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8. Termination of Agreement: The obligation of the Underwriters to
purchase the Offered Securities may be terminated at any time prior to the
Closing Date by notice to the Company from you, without liability on the part of
the Underwriters to the Company, if, on or prior to such date, (i) additional
material governmental restrictions, not in force and effect on the date of this
Agreement, shall have been imposed upon trading in securities generally or
minimum or maximum prices shall have been generally established on the New York
Stock Exchange or on the American Stock Exchange, or trading in securities
generally shall have been suspended on either such Exchange or trading in the
common stock or debt securities of the Company in the over-the-counter market
shall have been suspended or a general banking moratorium shall have been
established by Federal or New York authorities, or (ii) a war involving the
United States of America or other national calamity shall have occurred or shall
have accelerated to such an extent as to affect adversely the marketability of
the Offered Securities.
[9. Default by One or More of the Underwriters: If one or more of the
Underwriters shall fail on the Closing Date to purchase the Offered Securities
that it or they are obligated to purchase hereunder (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any substitute underwriter, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be approved by you and
upon the terms herein set forth; if however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed 10% of
the aggregate principal amount of Offered Securities, the non-defaulting
Underwriters shall be obligated to purchase the full amount thereof in the
proportions that their respective underwriting obligations hereunder bear to the
underwriting obligations of all non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of Offered Securities, the Company shall be entitled
for an additional 24-hour period to find one or more substitute underwriters
satisfactory to the Representatives in their reasonable discretion to purchase
such Defaulted Securities.
In the event of any such default either the Representatives or the Company
shall have the right to postpone the Closing Date for a period not exceeding
seven days in order to effect any required changes in the Registration Statement
or Prospectus or in any other documents or arrangements relating to the purchase
of the Offered Securities.
If the principal amount of Defaulted Securities exceeds 10% of the
aggregate principal amount of Offered Securities, and neither the
Representatives nor the Company make arrangements pursuant to this Section 9
within the period stated for the purchase of the Defaulted Securities, this
Agreement shall terminate without liability on the part of any non-defaulting
Underwriter to the Company except as provided in Section 6.
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No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
A substitute underwriter hereunder shall be an Underwriter for all purposes
of this Agreement.]
[9.][10.]Miscellaneous: Notice given pursuant to any of the provisions of
this Agreement shall be in writing and shall be mailed or delivered (a) to the
Company at its principal executive offices, located at Terrace Tower II, ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇, Attention: Chief Financial Officer,
or (b) to you at ____________-, attention of: . Any notice under Section
8 hereof may be made by facsimile transmission or telephone, but if so made
shall be subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and of the controlling persons, directors and
officers referred to in Section 6 hereof, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" as used in this Agreement
shall not include a purchaser, as such purchaser, of Offered Securities from any
Underwriter.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriters.
Very truly yours,
TELE-COMMUNICATIONS, INC.
By:
---------------------------
Name:
Title:
Confirmed and Accepted,
as of the date first above written:
By:
---------------------------
Name:
Title:
17
EXHIBIT A
DEBT SECURITIES
Designation:
Issue Date:
Maturity [and provisions for extension, if any]:
Authorized Denominations:
[Interest rate (or method of computation), Interest Payment Dates and Record
Dates or, if Original Discount Securities, issue price and yield to maturity:]
[Sinking Fund:]
[Optional Redemption:]
[Provisions for purchase or exchange at option of the Holder or the Company:]
[Conversion price or conversion rate and conversion period:]
[Other specific terms:]
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EXHIBIT B
PRINCIPAL AMOUNT
UNDERWRITER OF OFFERED SECURITIES
----------- ---------------------
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