EXHIBIT 1.1
TELE-COMMUNICATIONS, INC.
UNDERWRITING AGREEMENT
FOR EQUITY SECURITIES
__________ __, 19__
To the Representatives of the
several Underwriters named in
the respective Pricing Agreement
hereinafter described
Dear Sirs:
From time to time Tele-Communications, Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each, a
"Pricing Agreement") in the form of Annex I, with such additions and deletions
as the parties may determine, and, subject to the terms and conditions stated
herein and therein, to issue and sell to the firms named in Exhibit A to the
applicable Pricing Agreement (such firms constituting the "Underwriters" with
respect to such Pricing Agreement and the securities specified therein) shares
of its Series A TCI Group Common Stock, $1.00 par value per share (the "Common
Stock") and/or shares of its Series Preferred Stock, par value $.01 per share
(the "Preferred Stock") (which may be represented by depositary shares
representing shares of Preferred Stock (the "Depositary Shares")). (The Common
Stock, the Preferred Stock and the Depositary Shares specified in Exhibit B to
the applicable Pricing Agreement are collectively called the "Offered
Securities.") Each of the Offered Securities shall have the terms set forth in
Exhibit B to the applicable Pricing Agreement. The term "Underwriters" as used
herein will mean and refer collectively to one or more of the several
Underwriters named in Exhibit A to the applicable Pricing Agreement (and any
substitute Underwriter pursuant to Section 9 hereof), the term "Underwriter"
will refer to any of the several Underwriters named in Exhibit A to the
applicable Pricing Agreement (and any substitute underwriter pursuant to Section
9 hereof), and the term "Representatives" will refer to the Representatives
named in the applicable Pricing Agreement as the Representatives of the several
Underwriters. Any reference to you in this Agreement or in the applicable
Pricing Agreement shall be solely in your capacity as Representatives. The
Company confirms as follows its agreement with you and the Underwriters.
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. 333-00765), including a prospectus,
relating to, among other securities, Common Stock, Preferred Stock (which may be
represented by Depositary Shares) and shares of Common Stock which may issuable
from time to time upon conversion of convertible Preferred Stock , 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 any
reference 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 to 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 and the applicable Pricing Agreement the
Underwriters agree to purchase from the Company, severally and not jointly, the
number of Offered Securities set forth opposite each Underwriter's respective
name in Exhibit A to such Pricing Agreement, at a purchase price specified
therein.
If any Offered Securities consist of shares of Preferred Stock and the
Prospectus so provides, such shares of Preferred Stock will be deposited by the
Company against delivery of receipts ("Depositary Receipts") to be issued by a
depositary to be named by the Company (the "Depositary") under a deposit
agreement (a "Deposit Agreement") between the Company, the Depositary and the
holders from time to time of the Depositary Receipts issued thereunder and
evidencing Depositary Shares. Each Depositary Share will represent the number
of deposited shares of Preferred Stock specified in the applicable prospectus
supplement and in Exhibit B to the applicable Pricing Agreement
The terms and rights of any particular issuance and sale of Offered
Securities shall be as specified in the applicable Pricing Agreement and, if the
Offered Securities include Preferred Stock, in or pursuant to a resolution or
resolutions of the Board of Directors of the Company or a duly authorized
committee thereof and set forth in a certificate of designations (the
"Certificate of
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Designations") to be filed with the Secretary of State of the State of Delaware
pursuant to Section 151 of the General Corporation Law of the State of Delaware
(the "General Corporation Law").
Common Stock, Preferred Stock and Depositary Shares may be offered and sold
separately or as units, as specified in the applicable prospectus supplement and
in Exhibit B to the Pricing Agreement.
The particular sales of certain Offered Securities may be made from time to
time to the Underwriters specified in the applicable Pricing Agreement, for whom
you may act as Representatives. (The term "Representatives" also refers to a
single firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their representative.)
The obligation of the Company to issue and sell, and the obligation of you or
any of the Underwriters to purchase, shall be evidenced by the applicable
Pricing Agreement with respect to the Offered Securities specified therein, and,
prior to the execution of such Pricing Agreement, this Agreement shall not be
construed as an obligation of the Company to sell any Offered Securities or as
an obligation of the Underwriters to purchase any Offered Securities. A Pricing
Agreement in the form of Annex I shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and the applicable Pricing Agreement shall be
several and not joint.
Each Pricing Agreement shall specify the aggregate number of Offered
Securities that the Company proposes to issue and sell (the "Firm Securities")
and, with respect to any grant by the Company to the Underwriters of the option
described in Section 3 hereof, the maximum number of Offered Securities that the
Company proposes to issue and sell to cover over-allotments (the "Optional
Securities"), the initial public offering price of such Firm Securities and
Optional Securities or the manner of determining such price, the purchase price
to the Underwriters of such Firm Securities and Optional Securities, the names
of the Underwriters, the names of the Representatives of such Underwriters, the
number of such Firm Securities and Optional Securities, if any, to be purchased
by each Underwriter and the commission, if any, payable to the Underwriters with
respect thereto. The Pricing Agreement shall also specify (to the extent not
set forth in the Registration Statement and Prospectus with respect thereto)
the terms of such Firm Securities and Optional Securities.
Upon the execution of the Pricing Agreement applicable to any Offered
Securities and authorization by the Representatives of the release of the Firm
Securities, the Company understands that the Underwriters propose to offer the
Firm Securities for sale upon the terms and conditions set forth in the
Prospectus, as amended or supplemented.
With respect to any Offered Securities purchased by an Underwriter that
such Underwriter continues to own or hold at any time on or after the 90th day
following the applicable Closing Date (as defined in Section 3), such
Underwriter agrees that upon receipt of written notice by the
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Representatives from the Company of the Company's 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, such Underwriter will, and
will cause its "affiliated purchasers" (as defined in said Rule) to, cease
distributing any Offered Securities for such period of time as the Company may
deem necessary so that the action or actions proposed to be taken by it directly
or indirectly 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 Firm Securities
shall be made on the date and at the time agreed to in the applicable Pricing
Agreement (such time and date are referred to herein as a "Closing Date"), at
the offices of ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇. The
Closing Date and the place of delivery of and payment for the Firm Securities
may be varied by agreement between you and the Company.
Delivery of Firm Securities (in definitive form and registered in such
names as you shall request at least 48 hours prior to a Closing Date by written
notice of the Company) shall be made to you for the account of the respective
Underwriters against payment by you on behalf of the respective Underwriters 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. The
Company agrees to make the Firm Securities (or Depository Receipts representing
any Firm Securities) available to you for inspection at least 24 hours prior to
the Closing Date or such shorter period of time as you may agree to.
If the applicable Pricing Agreement grants to the Underwriters the right
(an "Over-Allotment Option") to purchase at their election up to the number of
Optional Securities allocated to each of the several Underwriters in the
applicable Pricing Agreement, upon the terms and conditions specified herein and
therein, for the sole purpose of covering over-allotments in the sale of the
Firm Securities, such election to purchase Optional Securities may be exercised
by written notice from the Representatives within the period specified in the
applicable Pricing Agreement setting forth the aggregate number of Optional
Securities to be purchased, the number of Optional Securities to be purchased by
each of the Underwriters, and the date on which such Optional Securities are to
be delivered, as determined by the Representatives but in no event earlier than
the Closing Date, or, unless the Representatives and the Company otherwise agree
in writing, later than the time specified in the applicable Pricing Agreement.
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
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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 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 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 time.
(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 you for delivery to each Underwriter,
without charge, as many copies of the Prospectus or any amendment or supplement
thereto as such Underwriter may reasonably 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 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
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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 any Offered Securities by the
Underwriters, the Company will cooperate with you and counsel retained by you on
behalf of the Underwriters in connection with the registration or qualification
of Offered Securities (and any Common Stock issuable upon conversion of any
Offered Securities) for offer and sale under the securities or Blue Sky laws of,
and the determination of the eligibility of 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 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
registration or qualification of Offered Securities (and any Common Stock
issuable upon conversion of any Offered Securities) under such securities or
Blue Sky laws and in connection with the determination of the eligibility of
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 4(e); (2) any fees charged by securities
rating agencies for rating any of the Offered Securities; (3) the preparation,
issuance and delivery of the Offered Securities (including Depositary Receipts
evidencing Depositary Shares) (other than transfer taxes); (4) the preparation,
execution and delivery of any Deposit Agreement and, to the extent set forth
therein, the fees and expenses of the Depositary; (5) the printing of any
Dealer Agreement; and (6) furnishing such copies of the Registration Statement,
the Prospectus and any preliminary prospectus, and all amendments and
supplements thereto, as may be requested
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for use in connection with the offering and sale of Offered Securities by
dealers to whom Offered Securities may be sold.
(h) If this Agreement is terminated by you because any condition to the
obligations of you and 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 of this Agreement or the applicable Pricing Agreement, or
if for any reason the Company shall be unable to perform its obligations herein
or therein, the Company will reimburse you on behalf of the Underwriters for all
out-of-pocket expenses (including the fees and expenses of counsel retained by
you on behalf of the Underwriters) reasonably incurred by you 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 applicable Closing Date, the
Company will not offer or sell, or contract to sell, 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 any 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;
(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 is first filed with the
Commission pursuant to Rule 424 or Rule 434 and as of the applicable Closing
Date, the Registration Statement and the Prospectus (as amended or
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supplemented, if applicable) will comply in all material respects with the
requirements of the 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 applicable
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 if first filed with the
Commission pursuant to Rule 424 or Rule 434 and as of the applicable 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 the Representatives expressly for
use therein;
(c) the Offered Securities have been duly authorized by the Company and
conform to the descriptions thereof in the Prospectus and in the related Pricing
Agreement;
(d) if any of the Offered Securities is Common Stock, such Common Stock has
been duly and validly authorized and, when such Common Stock is issued and
delivered pursuant to this Agreement and the Pricing Agreement and paid for by
the Underwriters in accordance therewith, such Common Stock will be duly and
validly issued and fully paid and non-assessable;
(e) if any of the Offered Securities is Preferred Stock, such Preferred
Stock has been duly and validly authorized and, upon the filing of a Certificate
of Designations for such Preferred Stock with the Delaware Secretary of State
and the issuance and delivery of such Preferred Stock against payment therefor
by the Underwriters in accordance with this Agreement and the Pricing Agreement,
such Preferred Stock will be duly and validly issued and fully paid and non-
assessable; if such Preferred Stock is convertible into Common Stock, the Common
Stock initially issuable upon conversion of such Preferred Stock has been
reserved for issuance upon such conversion and, when issued in accordance with
the terms of the Certificate of Designations upon conversion of such Preferred
Stock, such Common Stock will be duly authorized, validly issued, fully paid and
non-assessable;
(f) if the Offered Securities include Preferred Stock and Depositary
Shares, the Deposit Agreement has been duly authorized and, when executed and
delivered by the Company at the Closing Date and, assuming due authorization,
execution and delivery by the Depositary, at such Closing Date will constitute a
valid and legally binding agreement of the Company enforceable in accordance
with its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability relating to
or affecting creditors' rights and to general equity principles (regardless of
whether
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the issue of enforceability is considered in a proceeding at law or in equity);
when such Preferred Stock is issued and delivered to the Depositary against
receipt of Depositary Receipts evidencing such Depositary Shares and payment
therefor by the Underwriters in accordance with this Agreement and the Pricing
Agreement, such Depositary Shares will be duly and validly issued and the
persons in whose names the Depositary Receipts are registered shall be entitled
to the rights specified therein and in the Deposit Agreement;
(g) the issuance and sale of the Offered Securities and the fulfillment of
the terms of this Agreement and the related Pricing Agreement will not result in
a breach of any of the terms or 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;
(h) KPMG Peat Marwick LLP, the Company's auditors, are independent
accountants as required by the Act;
(i) so long as may be required for the distribution of the Offered
Securities by any Underwriter 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 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
(j) 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.
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 preliminary prospectus,
or arising out of or based upon any omission or alleged omission to state
therein any 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 omission or allegation thereof is based
upon information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein; provided, however, that the
Company shall not indemnify an Underwriter
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or any person who controls such Underwriter for 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) 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 the 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 the
Representatives 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 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 an 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 to so 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. An Underwriter or any 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 at 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 by you.
The Company shall not be liable for any settlement of any such action or
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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 indemnity
from the Company to each Underwriter, but only with respect to information
furnished in writing by such Underwriter through the Representatives 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
request 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 underwriting
discounts received by the Underwriters in respects 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 related to information supplied by the Company or by the
Underwriters through the Representatives and the parties' relative intent,
knowledge, access to information and opportunity to correct or prevent such
-11-
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 agrees 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 not 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. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution or indemnification 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 any Underwriter, by or on behalf of any
person controlling any Underwriter or by or behalf of the Company, (b)
acceptance of any of the Offered Securities and payment therefor or (c) any
termination of this Agreement or the applicable Pricing Agreement.
7. Conditions of the Obligations of You and the Underwriters: The
obligations of you and the Underwriters hereunder and under the applicable
Pricing Agreement are subject to the following conditions:
(a) at the applicable Closing Date no stop order suspending the
effectiveness of the Registrant Statement shall have been issued and no
proceedings for that purpose shall be pending or threatened by the Commission;
and the Representatives shall have received a certificate, dated the applicable
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
(f) of this Section 7;
(b) the Representatives shall have received opinions, dated the applicable
Closing Date and reasonably satisfactory to counsel retained by the
Representatives on behalf of the Underwriters, (A) from Messrs. ▇▇▇▇, Raywid &
▇▇▇▇▇▇▇▇▇ or such other special communications counsel for the Company as may be
reasonably satisfactory to the Representatives, (B) from the General Counsel of
the Company to the following effect and covering such additional matters as the
Representatives may reasonably request:
-12-
(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 the Pricing Agreement, and to issue and sell the Offered
Securities as contemplated by this Agreement and the Pricing 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 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 and the
Pricing 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 of the Pricing
Agreement, 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
-13-
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 or incorporated by reference in the Registration
Statement or Prospectus, as to which no opinion need be expressed), contained,
as of the date of the Prospectus was first filed with the Commission pursuant to
Rule 424, or contains, as of the applicable 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.
(C) from Messrs. ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, or from such other special counsel for
the Company as may be reasonably satisfactory to the Representatives, to the
following effect and covering such additional matters as the Representatives may
reasonably request:
(i) the execution and delivery of this Agreement and of the Pricing
Agreement, 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 the
Representatives, to the following effect and covering such additional matters as
the Representatives may reasonably request:
(i) this Agreement and the applicable Pricing Agreement have been duly
authorized, executed and delivered by the Company;
(ii) if any of the Offered Securities is Common Stock, such Common Stock
has been duly and validly authorized and, when such Common Stock is issued,
signed by the transfer agent and delivered pursuant to this Agreement and the
Pricing
-14-
Agreement and paid for by the Underwriters in accordance therewith, such Common
Stock will be duly and validly issued and fully paid and non-assessable;
(iii) if any of the Offered Securities is Preferred Stock, such Preferred
Stock has been duly and validly authorized and, upon the filing of a Certificate
of Designations for such Preferred Stock with the Delaware Secretary of State
and the issuance, the execution by the transfer agent and delivery of such
Preferred Stock against payment therefor by the Underwriters in accordance with
this Agreement and the Pricing Agreement, such Preferred Stock will be duly and
validly issued and fully paid and non-assessable; if such Preferred Stock is
convertible into Common Stock, the Common Stock initially issuable upon
conversion of such Preferred Stock has been reserved for issuance upon such
conversion and, when issued in accordance with the terms of the Certificate of
Designations upon conversion of such Preferred Stock, such Common Stock will be
duly authorized, validly issued, fully paid and non-assessable;
(iv) if the Offered Securities include Preferred Stock and Depositary
Shares, the Deposit Agreement has been duly authorized, executed and delivered
by the Company and, assuming due authorization, execution and delivery by the
Depositary, constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles (regardless of whether the issue of enforceability is considered in a
proceeding at law or in equity); and the Deposit Agreement conforms to the
description thereof in the Prospectus, as amended or supplemented;
(v) 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
(vi) the Offered Securities conform in all material respects as to legal
matters to the descriptions thereof in the Prospectus, as amended or
supplemented.
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
-15-
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 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
therein and (y) the documents incorporated therein or deemed to be incorporated
by reference therein, as to which no belief 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 statement therein (in the cases of the Prospectus, as
amended, or supplemented, if applicable, in light of the circumstances under
which they were made) not misleading."
In giving the opinions required under this Section 7(b), subparagraphs (A),
(B), (C) and (D), each 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 law of 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 the Representatives and counsel retained by the
Representatives on behalf of the Underwriters;
(c) if the Offered Securities include Preferred Stock and Depositary
Shares, the Representatives shall have received on the applicable Closing Date
from counsel to the Depositary an opinion, dated such Closing Date, to the
following effect;
(i) the Depositary has full power, authority and legal right to execute,
deliver and carry out the terms of the Deposit Agreement;
(ii) the Deposit Agreement has been duly authorized, executed and delivered
by the Depositary and, assuming due authorization, execution and delivery by the
Company, constitutes a valid and legally binding agreement of the Depositary
enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to general equity
principles (regardless of whether the issue of enforceability is considered in a
proceeding at law or in equity); and
-16-
(iii) upon due issuance by the Depositary of Depositary Shares evidenced by
Depositary Receipts in accordance with the terms of the Deposit Agreement
against deposit in accordance with the Deposit Agreement of validly issued,
fully paid and non-assessable shares of Preferred Stock, such Depositary Shares
will be duly and validly issued and the persons in whose names the Depositary
Receipts are registered shall be entitled to the rights specified therein and in
the Deposit Agreement.
(d) the Representatives shall have received on the applicable Closing Date
from counsel retained by the Representatives on behalf of the Underwriters an
opinion with respect to the Offered Securities, the Registration Statement and
the Prospectus in the form customarily given by such firm, including an opinion
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 by reference therein, as to which no opinion need be expressed)
comply as to form in all material respects with the Act;
(e) on the applicable Closing Date the Representatives shall have received
a letter addressed to the Representatives from KPMG Peat Marwick LLP,
independent auditors for the Company, reasonably satisfactory to the
Representatives;
(f) the representations and warranties of the Company in this Agreement
shall be true and correct on and as of the applicable 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 applicable 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
applicable Closing Date, any material adverse change in the condition (financial
or otherwise), business, prospects or results of operations of the Company and
its subsidiaries, considered as a whole; and
(g) subsequent to the date of the applicable Pricing 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 which, in the reasonable
judgment of the Representatives, 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.
8. Termination of Pricing Agreement. The obligation of the Underwriters
to purchase the Offered Securities may be terminated at any time prior to the
applicable Closing Date by notice to the Company from the Representatives,
without liability on the part of the Underwriters to the
-17-
Company, if, on or prior to such date (i) additional material governmental
restrictions, not in force and effect on the date of the applicable Pricing
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 securities of the Company of the same class as the Offered
Securities 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 applicable Closing Date to purchase the Firm
Securities or Optional Securities, as the case may be, 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 underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be approved by the Representatives
and upon the terms herein set forth; provided, however, that if the
Representatives have not completed such arrangements within such 24-hour period,
then:
(a) if the amount of Defaulted Securities does not exceed 10% of the
aggregate amount of the Firm Securities or the Optional Securities, as the case
may be, 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 amount of Defaulted Securities exceeds 10% of the aggregate
amount of Firm Securities or Optional Securities, as the case may be, the
Company shall be entitled to 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 applicable 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 amount of Defaulted Securities exceeds 10% of the aggregate amount
of the Firm Securities or the Optional 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, the
applicable Pricing Agreement shall terminate with respect to such Firm
Securities or Optional Securities, as the case may be, without liability on the
part of any non-defaulting Underwriter to the Company except as provided in
Section 6.
-18-
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 and the applicable Pricing Agreement.
10. Miscellaneous: Notice given pursuant to any of the provisions of this
Agreement or the applicable Pricing Agreement shall be in writing and shall be
mailed or delivered (a) to the Company at its principal executive office located
at Terrace Tower II, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇,
attention: Chief Financial Officer, or (b) to you at the address specified in
the applicable Pricing Agreement. Any notice under Section 8 hereof may be
telex or telephone, but if so made shall be subsequently confirmed in writing.
This Agreement and the applicable Pricing Agreement have been and are 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 or the applicable Pricing
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 and the applicable Pricing Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
-19-
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 as of the date
first above mentioned
By: ______________________________________
Name:
Title:
-20-
TELE-COMMUNICATIONS, INC.
PRICING AGREEMENT
____________ __, 19__
Dear Sirs:
Tele-Communications, Inc., a Delaware corporation (the "Company"),
proposes, subject to terms and conditions stated herein and in the Underwriting
Agreement dated ___________, 19__ (the "Underwriting Agreement"), to issue
and sell to each Underwriter named in Exhibit A hereto (each an "Underwriter")
certain securities (the "Offered Securities") described in Exhibit B hereto.
Each of the provisions of the Underwriting Agreement is incorporated
herein by reference in its entirety, and shall be deemed to a part of this
Pricing Agreement to the same extent as if such provisions had been set forth in
full herein. Each of the representations and warranties set forth in the
Underwriting Agreement shall be deemed to have been made at and as of the date
of this Pricing Agreement, except that each representation and warranty with
respect to the Prospectus shall be deemed to be a representation and warranty as
of the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Offered Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Terms not otherwise defined herein shall have the meanings
ascribed to them in the Underwriting Agreement.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Offered Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and the
Underwriting Agreement incorporated herein by reference, the Company agrees to
sell to each Underwriter, and each Underwriter agrees to purchase from the
Company, at a purchase price to each Underwriter set forth in Exhibit A hereto,
the number of Firm Securities set forth opposite the name of such Underwriter in
Exhibit A hereto. If and to the extent that the Representatives exercise the
election to purchase Optional Securities as provided below, the Company agrees
to sell to each Underwriter, and each
Underwriter agrees to purchase from the Company at the purchase price to each
Underwriter set forth in Exhibit A hereto, that portion of the number of
Optional Securities as to which such election has been exercised.
The Company hereby grants to each Underwriter, subject to the terms
set forth herein and in the Underwriting Agreement, the right to purchase at its
election up to the number of Optional Securities set forth opposite the name of
such Underwriter in Exhibit A hereto on the terms referred to in the paragraph
above for the sole purpose of covering over-allotments in the sale of the Firm
Securities.
[Each Underwriter (i) has not offered or sold, and will not offer or
sell, in the United Kingdom, by means of any document, any Offered Securities
other than to persons whose ordinary business is to buy or sell shares or
debentures, whether as principal or agent (except under circumstances which do
not constitute an offer to the public within the meaning of the Companies Act
1985); (ii) has complied and will comply with all applicable provisions of the
Financial Services ▇▇▇ ▇▇▇▇ with respect to anything done by it in relation to
the Offered Securities in, from or otherwise involving the United Kingdom; and
(iii) has only issued or passed on, and will only issue and pass on to the any
person in the United Kingdom, any document received by it in conjunction with
the issue of the Securities if that person is of a kind described in Article
9(3) of the Financial Services ▇▇▇ ▇▇▇▇ (Investment Advertisements) (Exemptions)
Order 1988 or is a person to whom the document may otherwise lawful be issued or
passed on.]
Delivery and payment for the Firm Securities shall be made at 10:00
a.m. New York time on , (the "Closing Date") at
the offices of ▇▇▇▇▇ & ▇▇▇▇▇, L.L.P., ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇
▇▇▇▇▇. The Closing Date and the place of delivery of and payment for the Firm
Securities may be varied by agreement between the Representatives and the
Company.
Any election to purchase Optional Securities may be exercised by
written notice from the Representatives to the Company given within a period of
30 days after the date of this Agreement, setting forth an aggregate number of
Optional Securities to be purchased, the number of Optional Securities to be
purchased by each Underwriter, and the date on which such Optional Securities
are to be delivered as determined by the Representatives, but in no event
earlier than the Closing Date.
If the foregoing is in accordance with your understanding, please sign
and return to us counterparts hereof, and upon acceptance hereof by you, this
Pricing Agreement, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
the Underwriter and the Company.
Very truly yours,
Tele-Communications, Inc.
By:
-------------------------
Name:
Title:
Confirmed as of the date
first above mentioned
By:
-------------------------
Name:
Title:
EXHIBIT A
TO A PRICING AGREEMENT DATED
Number of Offered Securities:
----------------------------
Firm: Optional/1/:
---- --------
Names of
Underwriters
------------
Names and Addresses of Representatives:
-------------------
/1/ Maximum Number
---
EXHIBIT B
TO A PRICING AGREEMENT DATED
OFFERED SECURITIES
SERIES A TCI GROUP COMMON STOCK:
--------------------------------
Voting Rights: 1:1
Purchase Price (includes accrued dividend, if any):
(1) Firm:
(2) Optional:
Discount:
Initial Public Offering Price (or method of calculation):
Conversion Rate:
Other Terms:
PREFERRED STOCK:
---------------
Designation:
Depository Shares?: [Yes] [No]
Voting Rights:
Purchase Price (includes accrued dividend, if any):
(1) Firm:
(2) Optional:
Discount:
Initial Public Offering Price (or method of calculation):
Conversion Rate:
Dividend Rate:
Record Dates:
Dividend Payment Dates:
Liquidation Preference per Share:
Other Terms: