EXHIBIT 1.2
TCI COMMUNICATIONS, INC.
UNDERWRITING AGREEMENT
FOR DEBT SECURITIES
__________ ___, 19__
[To the Underwriter(s) or the Representative(s) of the Underwriters]
Dear Sirs:
TCI Communications, Inc., a Delaware corporation (the "Company"), proposes
to issue and sell [ ] principal amount of its [ ] (the "Offered
Securities") pursuant to an indenture dated as of , ([as amended and]
as the same may be [further] amended or supplemented, the "Indenture"), with
, as trustee (the "Trustee"). Each Offered Security will be issuable in the
denominations and shall have the terms set forth in Exhibit A. [The term
"Underwriters" as used herein will mean and refer collectively to one or more
several Underwriters named in Exhibit B (and any substitute underwriter pursuant
to Section 9 hereof), the term "Underwriter" will refer to any of the several
Underwriters named in Exhibit B (and any substitute underwriter pursuant to
Section 9 hereof), and the term "Representatives" will refer to you in your
capacity as the Representatives of the several Underwriters or, in the event no
Representatives shall have been appointed, in your capacity as Underwriters.
Any reference to you in this Agreement shall be solely in your capacity as
Representatives.] The Company confirms as follows its agreement with you and
the Underwriter[s].
1. Registration Statement and Prospectus: The Company and Tele-
Communications, Inc., a Delaware corporation (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. 333- ), including a prospectus,
relating to, among other securities, debt securities of the Company ("Debt
Securities") issuable from time to time in one or more series, [including the
Offered Securities], guarantees ["Guarantees"] of the Parent that may be issued
in respect of Offered Securities, [including Guarantees relating to the Offering
Securities,] and shares of Series A TCI Group Common Stock, par value $1.00 per
share, of the Parent ("Common Stock") issuable from time to time upon conversion
of convertible Debt Securities, [including the shares (the "Common Shares")
issuable upon conversion of the Offered Securities,] which has become effective
under the Act, and will promptly file with the Commission a prospectus
supplement specifically relating to the Offered Securities pursuant to Rule 424
under the Act. As used in this Agreement, the term "Registration Statement"
means such shelf registration statement, including exhibits and financial
statements and schedules and documents incorporated by reference
therein, as amended or supplemented to the date hereof and, in the case of
references to the Registration Statement as of a date subsequent to the date
hereof, as amended or supplemented as of such date. The term "Basic Prospectus"
means the prospectus, dated ____________, _____, as filed with the Commission
pursuant to Rule 424 under the Act and forming part of the Registration
Statement. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement specifically relating to the Offered Securities as filed
with the Commission pursuant to Rule 424 under the Act and any information
deemed to be a part thereof pursuant to Rule 434 under the Act. The term
"preliminary prospectus" means any preliminary prospectus supplement
specifically relating to the Offered Securities together with the Basic
Prospectus. Any reference herein to any preliminary prospectus or the Prospectus
shall be deemed to refer to and include the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such
preliminary prospectus or the Prospectus, as the case may be, and any reference
herein to any amendment or supplement to any preliminary prospectus or the
Prospectus, except the reference in Section 4(c), shall be deemed to refer to
and include any documents filed after such date under the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), and so incorporated by reference.
2. Agreements to Sell and Purchase: The Company agrees to sell to the
Underwriters, and upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to the terms and
conditions of this Agreement each of the Underwriters agrees to purchase from
the Company, severally and not jointly, the principal amount of Offered
Securities set forth opposite each Underwriter's respective name in Exhibit B,
at a purchase price per Offered Security of $ , plus accrued
[interest][original issued discount] from [ ].
With respect to any of the Offered Securities purchased by you hereunder
that you continue to own or hold at any time on or after the 90th day following
the Closing Date (as defined in Section 3), you agree that upon receipt of
written notice from the Company of its intention to bid for or purchase any
Offered Security or any security of the same class and series as the Offered
Securities or to take any other action, directly or indirectly, the taking of
which would be proscribed by Regulations M 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 Rule 100 of said Regulation) 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 Regulation (or any
successor or equivalent rule or regulation).
3. Delivery and Payment: Delivery of and payment for the Offered
Securities shall be made at 10:00 a.m., New York time, on ______________, 19__
(such time and date are referred to herein as the "Closing Date"), at the
offices of Xxxxx & Xxxxx, L.L.P., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx. 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.
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Delivery of the Offered Securities (in definitive form and registered in
such names and in such authorized denominations as you shall request at least 48
hours prior to the Closing Date by written notice to the Company) shall be made
to you against payment by you of the purchase price therefor by cashier or
official bank check or checks payable to the order of the Company in or by wire
transfer to an account specified by the Company of same day federal 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, during the period of the
distribution of the Offered Securities (1) of the effectiveness of any
amendment to the Registration Statement and of the filing of any supplement
to the Prospectus, (2) of any comments of the Commission regarding the
Registration Statement or the Prospectus (or any of the documents
incorporated by reference therein) or of any request by the Commission for
amendments or supplements to the Registration Statement or the Prospectus
or for additional information, (3) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement or
the initiation or threatening of any proceedings for that purpose, (4) of
the receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities [or the Common
Shares] [or the Guarantees] 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] [or the Guarantees] for
offer or sale in any jurisdiction, and if any such order is issued, the
Company will make every reasonable effort to obtain the withdrawal of such
order at the earliest possible moment.
(b) The Company will furnish to each of you, without charge, one
conformed copy of the Registration Statement and any post-effective
amendment thereto filed in connection with the offering of the Offered
Securities, including all financial statements and schedules, exhibits and
documents incorporated therein by reference (including exhibits
incorporated therein by reference to the extent not previously furnished to
you).
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(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 Prospectus or any amendment or supplement thereto by the
Underwriters and by all dealers to whom the Offered Securities may be sold,
both in connection with the offering or sale of the Offered Securities and
for such period of time thereafter as the Prospectus is required by law to
be delivered in connection therewith. If during such period of time any
event shall occur which in the judgment of the Company should be set forth
(or incorporated by reference) in the Prospectus in order to make the
statements therein, in light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading, or if it is necessary to
supplement or amend the Prospectus to comply with law, the Company will
forthwith prepare and duly file with the Commission an appropriate
supplement or amendment thereto, and forthwith file all reports and any
definitive proxy statement or information statement required to be filed by
the Company with the Commission pursuant to Section 13 or 14 of the
Exchange Act subsequent to the date of the Prospectus and during such
period, and will deliver to each Underwriter, without charge, such number
of copies thereof as such Underwriter may reasonably request. If during
such period of time any event shall occur which in your judgment should be
so set forth (or incorporated by reference) in the Prospectus, or which in
your judgment makes it necessary to so supplement or amend the Prospectus,
the Company will consult with you concerning the necessity of filing with
the Commission a supplement or an amendment to the Prospectus or a report
pursuant to Section 13 or 14 of the Exchange Act.
(e) Prior to any public offering of the Offered Securities by the
Underwriters, the Company will cooperate with you and your counsel in
connection with the registration or qualification of the Offered Securities
[and the Common Shares] [and the Guarantees] 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] [and the Guarantees]
under such securities or Blue Sky laws and in connection with the
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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
Underwriter[s] for all out-of-pocket expenses (including the fees and
expenses of your counsel) reasonably incurred by the Underwriter[s] in
connection herewith. The Company will not in any event be liable to you
[or any of the Underwriters] for damages on account of loss of anticipated
profits.
(i) From the date hereof to and including the Closing Date, the
Company will not offer or sell, or contract to sell, any Debt Securities of
the Company with a maturity of more than one year, including additional
Offered Securities, pursuant to a public offering without your prior
written consent.
5. Representations and Warranties of the Company: The Company represents
and warrants to each Underwriter that:
(a) the documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed)
with the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and any further documents so filed and incorporated
by reference during the period of the distribution of the Offered
Securities will, when they
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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 or any term sheet is first filed with the Commission pursuant to
Rule 424 or Rule 434 and as of the Closing Date, the Registration Statement
and the Prospectus (as amended or supplemented, if applicable) will comply
in all material respects with the requirements of the Act and the Indenture
will comply in all material respects with the requirements of the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act"). When it was
declared effective by the Commission, the Registration Statement did not,
and as of the date the Prospectus is first filed with the Commission
pursuant to Rule 424 or Rule 434 and as of the Closing Date the
Registration Statement (as amended or supplemented, if applicable) will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. When the Prospectus is first filed with
the Commission pursuant to Rule 424 or Rule 434 and as of the Closing Date,
the Prospectus (as amended or supplemented, if applicable) will not contain
an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein,
in light of the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, this representation and warranty does not
apply to statements or omissions in the Registration Statement or the
Prospectus or any preliminary prospectus made in reliance upon information
furnished to the Company in writing by any Underwriter [through you]
expressly for use therein or to that part of the Registration Statement
which consists of the Statements of Eligibility on Form T-1 under the Trust
Indenture Act of the trustees for the Debt Securities;
(c) the Offered Securities and the Indenture have been duly authorized
by the Company [and 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
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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(w) of
Regulation S-X) is now a party or by which it is bound, or any order of any
court or governmental agency or authority entered in any proceeding to
which the Company or any of its significant subsidiaries was or is now a
party or by which it is bound;
(e) KPMG Peat Marwick LLP, the Company's auditors, are independent
accountants as required by the Act;
(f) so long as may be required for the distribution of the Offered
Securities by the Underwriters or by any dealers that participate in the
distribution thereof, the Company will comply with all requirements under
the Exchange Act relating to the timely filing with 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 any Underwriter [through you]
expressly for use therein; provided, however, the Company shall not
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indemnify any Underwriter or any person who controls such Underwriter from any
such losses, claims, damages or liabilities alleged by any person who purchased
Offered Securities from such Underwriter if the untrue statement, omission or
allegation thereof upon which such losses, claims, damages or liabilities are
based was made in: (i) any preliminary prospectus, if a copy of the Prospectus
(as then amended or supplemented if the Company shall have furnished any
amendments or supplements thereto) was not sent or given by or on behalf of such
Underwriter to such person at or prior to the written confirmation of the sale
of Offered Securities to such person, and if the Prospectus (as so amended or
supplemented) corrected the untrue statement or omission giving rise to such
loss, claim, damage or liability; (ii any Prospectus used by such Underwriter or
any person who controls such Underwriter, after such time as the Company advised
you that the filing of a post-effective amendment or supplement thereto was
required, except the Prospectus as so amended or supplemented; or (ii 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
an Underwriter in respect of which indemnity may be sought from the Company,
such Underwriter or such controlling person shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to you and the payment of all
expenses. Any omission so to notify the Company shall not, however, relieve the
Company from any liability which it may have to any indemnified party otherwise
than under this Section 6. Any such Underwriter or any such person controlling
an Underwriter shall have the right to employ separate counsel in any such
action or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be such Underwriter's expense or the
expense of such controlling person unless (a) the Company has agreed to pay such
fees and expenses or (b) the Company shall have failed to assume the defense of
such action or proceeding and employ counsel reasonably satisfactory to you in
any such action or proceeding or (c) the named parties to any such action or
proceeding (including any impleaded parties) include both such Underwriter or
such controlling person and the Company, and you shall have been advised by your
counsel that there may be a conflict of interest between such Underwriter or
controlling person and the Company in the conduct of the defense of such action
(in which case, if such Underwriter or such controlling person notifies the
Company in writing that it elects to employ separate counsel at the expense of
the Company, the Company shall not have the right to assume the defense of such
action or proceeding on behalf of such Underwriter or such controlling person),
it being understood, however, that the Company shall not, in connection with any
one such action or proceeding or separate but substantially similar or related
actions or proceedings arising out of the same general allegations or
circumstances, be liable for the reasonable fees and expenses of more than one
separate firm of attorneys (unless the members of such firm are not admitted to
practice in a jurisdiction where an action is pending, in which case the Company
shall pay the reasonable fees and expenses of one additional firm of attorneys
to act as local counsel in such jurisdiction, provided the services of such
counsel are substantially limited to that of appearing as attorneys of record)
at any time for all
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indemnified parties, which firm shall be designated in writing by you. The
Company shall not be liable for any settlement of any such action or proceeding
effected without its written consent, but if settled with its written consent,
or if there be a final judgment for the plaintiff in any such action or
proceeding, the Company agrees to indemnify and hold harmless each Underwriter
and any such controlling person from and against any loss or liability by reason
of such settlement or judgment.
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 expressly for use in the Registration
Statement, the Prospectus, or any amendment or supplement thereto, or any
preliminary prospectus. In case any action or proceeding shall be brought
against the Company or its directors or officers or any such controlling person,
in respect of which indemnity may be sought against one or more of the several
Underwriters, such Underwriters acting through the Representatives shall have
the rights and duties given to the Company, and the Company or its directors or
officers or such controlling person shall have the rights and duties given to
you and the several Underwriters, by the preceding paragraph.
If the indemnification provided for in this Section 6 is unavailable to an
indemnified party under the first or third paragraph hereof in respect of any
losses, claims, damages or liabilities referred to therein (other than by reason
of such indemnified party's failure to comply with the first sentence of the
second paragraph of this Section 6), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other hand from the offering of the Offered Securities or (ii if the allocation
provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other in connection
with the Offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered Securities
received by the Company bear to the total underwriting discounts received by the
Underwriters in respect thereof. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact relates to
information supplied by the Company or by the Underwriters through you and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such statement or omission. The amount paid or payable by a
party as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include, subject to the limitations set forth in the
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second paragraph of this Section 6, any legal or other fees or expenses
reasonably incurred by such party in connection with investigating or defending
any action or claim.
The Company and each Underwriter agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6, the Underwriters shall 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 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.
The indemnity and contribution agreements contained in this Section 6 and
the representations and warranties of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (a) any
investigation made by or on behalf of the Underwriters, by or on behalf of any
person controlling any Underwriter or by or on behalf of the Company, (b)
acceptance of any of the Offered Securities and payment therefor or (c) any
termination of this Agreement.
7. Conditions of the Underwriters' Obligations: The Underwriters'
obligations hereunder are subject to the following conditions:
(a) at the Closing Date, [(i)] no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall be pending or threatened by the
Commission; and you shall have received a certificate, dated the Closing
Date and signed by the Chairman of the Board, the President, an Executive
Vice President or a Senior Vice President 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 a nationally recognized securities rating agency in the United States to
the senior debt securities of the Company as of the date of this Agreement
shall not have been lowered since that date];
(b) you shall have received opinions, dated the Closing Date and
reasonably satisfactory to counsel retained for the Underwriters, (A) from
Messrs. 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 the Representatives may reasonably
request:
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(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, 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.
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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 and incorporated by
reference in the Registration Statement or Prospectus, as to which no
opinion need be expressed), contained, as of the date the Prospectus
was first filed with the Commission pursuant to Rule 424, or contains,
as of the Closing Date, any untrue statement of a material fact or
omits to state any material fact required to be stated therein or
necessary to make the statements therein (in the case of the
Prospectus (as amended or supplemented, if applicable), in light of
the circumstances under which they were made,) not misleading[; and
(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
12
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 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;
(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] [, the
Guarantees] 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
13
description of the Offered Securities [, the Common Stock] and the
Indenture or relate to us. However, in connection with the preparation
of the Registration Statement and the Prospectus, we had conferences
with certain officers and other representatives of the Company, and
our examination of the Registration Statement and the Prospectus and
our discussions in such conferences did not disclose to us any
information (relying as to the materiality of any such information
primarily upon officers and other representatives of the Company)
which gave us reason to believe that either the Registration Statement
or the Prospectus, as amended or supplemented, if applicable (except
as to (x) the financial statements and schedules and any other
financial and statistical data contained or incorporated by reference
in the Registration Statement or the Prospectus and (y) the documents
incorporated or deemed to be incorporated by reference therein, as to
which no opinion is expressed), contained, as of the date the
Prospectus was first filed with the Commission pursuant to Rule 424,
or contains, as of the date hereof, any untrue statement of a material
fact or omitted or omits to state any material fact required to be
stated therein or necessary to make the statements therein (in the
case of the Prospectus, as amended or supplemented, if applicable, in
light of the circumstances under which they were made,) not
misleading."
In giving such opinions, such counsel may rely (x) as to matters
of fact, to the extent they deem proper, upon certificates of officers
of the Company, public officials and others, and (y) as to matters of
law if other than the United States or Colorado (in the case of
Messrs. 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 counsel retained
by you on behalf of the Underwriters an opinion to the effect set forth in
clauses (b)(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 such counsel an opinion with respect to
the Registration Statement and the Prospectus in the form customarily given
by such firm;
(d) on the Closing Date you shall have received a letter addressed to
the Representatives from KPMG Peat Marwick LLP, independent auditors for
the Company, reasonably satisfactory to you;
14
(e) the representations and warranties of the Company in this
Agreement shall be true and correct on and as of the Closing Date; the
Company shall have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
Closing Date; and except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there shall not have been, at the Closing Date, any material
adverse changes in the condition (financial or otherwise), business,
prospects or results of operations of the Company and its subsidiaries,
considered as a whole; and
(f) subsequent to the date of this Agreement, there shall not have
occurred any change, or any development involving a prospective change, in
or affecting particularly the business, prospects or financial affairs of
the Company and its subsidiaries, considered as a whole 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 the part of
the Underwriters to the Company, if, on or prior to such date, (i) additional
material governmental restrictions, not in force and effect on the date of this
Agreement, shall have been imposed upon trading in securities generally or
minimum or maximum prices shall have been generally established on the New York
Stock Exchange or on the American Stock Exchange, or trading in securities
generally shall have been suspended on either such Exchange or trading in the
common stock or debt securities of the Company in the over-the-counter market
shall have been suspended or a general banking moratorium shall have been
established by Federal or New York authorities, or (ii a war involving the
United States of America or other national calamity shall have occurred or shall
have accelerated to such an extent as to affect adversely the marketability of
the Offered Securities.
[9. Default by One or More of the Underwriters: If one or more of the
Underwriters shall fail on the Closing Date to purchase the Offered Securities
that it or they are obligated to purchase hereunder (the "Defaulted
Securities"), the Representatives shall have the right, within 24 hours
thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any substitute underwriter, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be approved by you and
upon the terms herein set forth; if however, you have not completed such
arrangements within such 24-hour period, then:
(a) if the principal amount of Defaulted Securities does not exceed
10% of the aggregate principal amount of Offered Securities, the non-
defaulting Underwriters shall be obligated to purchase the full amount
thereof in the proportions that their respective underwriting obligations
hereunder bear to the underwriting obligations of all non-defaulting
Underwriters, or
15
(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 principal executive offices, located at Terrace Tower II, 0000
XXX Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000, Attention: Chief Financial Officer,
or (b) to you at ____________-, attention of: . Any notice under Section
8 hereof may be made by facsimile transmission or telephone, but if so made
shall be subsequently confirmed in writing.
This Agreement has been and is made solely for the benefit of the
Underwriters and the Company and of the controlling persons, directors and
officers referred to in Section 6 hereof, and their respective successors and
assigns, and no other person shall acquire or have any right under or by virtue
of this Agreement. The term "successors and assigns" as used in this Agreement
shall not include a purchaser, as such purchaser, of Offered Securities from any
Underwriter.
This Agreement shall be governed by and construed in accordance with the
internal laws of the State of New York.
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Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriters.
Very truly yours,
TCI COMMUNICATIONS, INC.
By:
------------------------------
Name:
Title:
Confirmed and Accepted,
as of the date first above written:
[Underwriter[s]]
By:
------------------------------
Name:
Title:
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EXHIBIT A
DEBT SECURITIES
Designation:
Issue Date:
Maturity [and provisions for extension, if any]:
Authorized Denominations:
[Interest rate (or method of computation), Interest Payment Dates and Record
Dates or, if Original Discount Securities, issue price and yield to maturity:]
[Sinking Fund:]
[Optional Redemption:]
[Provisions for purchase or exchange at option of the Holder or the Company:]
[Conversion price or conversion rate and conversion period:]
[Other specific terms:]
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EXHIBIT B
Principal Amount
Underwriters of Offered Securities
------------ ---------------------
19
