EXHIBIT 1.1
UNDERWRITING AGREEMENT
[Date]
[To the Underwriter or Underwriters]
Dear Sirs:
TCI Communications, Inc. (the "Company") proposes to issue and sell [ ]
principal amount of its (the "Offered Securities") pursuant to an
indenture dated as of , 199 ([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 the 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 the Underwriter[s]:
1. Registration Statement and Prospectus: The Company and Tele-
Communications, Inc. (the "Parent") have 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. 33- ), including a prospectus, relating to
debt securities of the Company ("Debt Securities") issuable from time to time
in one or more series, [including the Offered Securities], shares of Series A
TCI Group Common Stock, $1.00 par value per share, of the Parent (the "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,] and guarantees of the Parent that may
be issued in respect of any Offered Securities that are convertible Debt
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 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 included in 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 you, 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 Underwriter[s] agrees to purchase from the Company,
[severally and not jointly], the [principal amount] [number] of Offered
Securities set forth opposite your [respective] names 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 (such time and date are
referred to herein as the "Closing Date"), at the office of New York, New
York. 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
two business days 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 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, (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, 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 request. The Company consents to the use of
the
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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 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
Underwriter[s], 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 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, including any term sheets delivered by the Company
pursuant to Rule 434 under the Act, 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
Underwriters for all out-of-pocket expenses (including the fees and
expenses of your counsel) reasonably incurred by the Underwriters in
connection herewith. The Company will not in any event be liable to 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 with a
maturity of more than one year, including additional Offered Securities,
pursuant to a public offering without your prior written consent.
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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 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 or term sheet, 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 such 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 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 the Common Shares have been duly authorized by the Parent]
and each will conform to the descriptions thereof in the Prospectus;
(d) the issuance and sale of the Offered Securities [the delivery of the
Common Shares], and the fulfillment of the terms of this 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;
(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
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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]
(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 Parent 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 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 any 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 the Company may otherwise have.
If any action or proceeding (including any governmental investigation) shall
be brought or asserted against any Underwriter or any person controlling such
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 such Underwriter 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 controlling person 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 such Underwriter 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 such Underwriter or such controlling person shall have been
advised by its counsel that there may be a conflict of interest between it or
such 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
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proceeding on behalf of such Underwriter or on behalf of 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 such Underwriter. 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 such
Underwriter and any such controlling person from and against any loss or
liability by reason of such settlement or judgment.
Each Underwriter [severally] agree[s] 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 such Underwriter, but only with respect to information
furnished in writing by such indemnifying party 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 any
Underwriter, such Underwriter 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 such Underwriter, 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 you
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 you 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 you 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 you in respect thereof. The relative fault of the Company on the
one hand and you 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 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, no
Underwriter 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 it 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 (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.
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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 such Underwriters 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 & Xxxxxx Credit Rating Co. or its successor or by
Xxxxx'x 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 for the Underwriters, (A) from Messrs.
Xxxx, Raywid & Xxxxxxxxx, 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 you 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 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,
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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. Xxxxxxx & Xxxxxx LLC or (ii) the
federal securities laws, 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 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]
[(viii) The Parent 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. Xxxxxxx & Xxxxxx LLC, 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 Xxxxx & Xxxxx, 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 which 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 Debt 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,
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;
8
(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[, the Common Stock] and the Indenture or relate to us. However,
we have 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 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 therein, (in the case of the Prospectus (as amended or
supplemented, as applicable in light of the circumstances under which they
were made,) as 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. Xxxxxxx &
Xxxxxx, LLC and General Counsel of the Company) or New York (in the case of
Xxxxx & Xxxxx, 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 Messrs. , your
counsel, 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 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
Messrs. , or from the counsel acceptable to you, 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 you
from KPMG Peat Marwick, LLP independent auditors for the Company,
reasonably satisfactory to you;
(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
9
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
(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 which, 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.
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 your part 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 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; if, however, the
Representatives 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.
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 office, Terrace Tower II, 0000 XXX Xxxxxxx,
00
Xxxxxxxxx, Xxxxxxxx 00000-0000, attention: Xxxxxxx X. Xxxxxxxxx, Senior Vice
President--Finance, or (b) to you at your office at , attention of: .
Any notice under Section 8 hereof may be made by telex 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.
Please confirm that the foregoing correctly sets forth the agreement between
the Company and the Underwriters.
Very truly yours,
TCI Communications, Inc.
By:
--------------------------
Name:
Title:
Confirmed and Accepted as
of the date first above
mentioned.
[Underwriter or Underwriters]
By:
--------------------------
Name:
Title:
11
EXHIBIT A
DEBT SECURITIES
Designation:
Dated 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:]
EXHIBIT B
PRINCIPAL AMOUNT
UNDERWRITER OF OFFERED SECURITIES
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