EXHIBIT 1.1
TELE-COMMUNICATIONS, INC.
UNDERWRITING AGREEMENT
FOR EQUITY SECURITIES
__________ __, 19__
To the Representatives of the
several Underwriters named in
the respective Pricing Agreement
hereinafter described
Dear Sirs:
From time to time Tele-Communications, Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each, a
"Pricing Agreement") in the form of Annex I, with such additions and deletions
as the parties may determine, and, subject to the terms and conditions stated
herein and therein, to issue and sell to the firms named in Exhibit A to the
applicable Pricing Agreement (such firms constituting the "Underwriters" with
respect to such Pricing Agreement and the securities specified therein) shares
of its Series A TCI Group Common Stock, $1.00 par value per share (the "Common
Stock"), and/or shares of its Series Preferred Stock, par value $.01 per share
(the "Preferred Stock"), (which may be represented by depositary shares
representing shares of Preferred Stock (the "Depositary Shares")). (The Common
Stock, the Preferred Stock and the Depositary Shares specified in Exhibit B to
the applicable Pricing Agreement are collectively called the "Offered
Securities.") Each of the Offered Securities shall have the terms set forth in
Exhibit B to the applicable Pricing Agreement. The term "Underwriters" as used
herein will mean and refer collectively to one or more of the several
Underwriters named in Exhibit A to the applicable Pricing Agreement (and any
substitute Underwriter pursuant to Section 9 hereof), the term "Underwriter"
will refer to any of the several Underwriters named in Exhibit A to the
applicable Pricing Agreement (and any substitute underwriter pursuant to Section
9 hereof), and the term "Representatives" will refer to the Representatives
named in the applicable Pricing Agreement as the Representatives of the several
Underwriters. Any reference to you in this Agreement or in the applicable
Pricing Agreement shall be solely in your capacity as Representatives. The
Company confirms as follows its agreement with you and the Underwriters.
1. Registration Statement and Prospectus: The Company and its subsidiary
TCI Communications, Inc., a Delaware corporation ("TCIC"), 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,
Common Stock, Preferred Stock (which may be represented by Depositary Shares)
and shares of Common Stock which may be issuable from time to time upon
conversion of convertible Preferred Stock , which has become effective under the
Act, and will promptly file with the Commission a prospectus supplement
specifically relating to the Offered Securities pursuant to Rule 424 under the
Act. As used in this Agreement, the term "Registration Statement" means such
shelf registration statement, including exhibits and financial statements and
schedules and documents incorporated by reference therein, as amended or
supplemented to the date hereof and, in the case of any reference to the
Registration Statement as of a date subsequent to the date hereof, as amended or
supplemented as of such date. The term "Basic Prospectus" means the prospectus,
dated , as filed with the Commission pursuant to Rule 424 under the
Act and forming part of the Registration Statement. The term "Prospectus" means
the Basic Prospectus together with the prospectus supplement specifically
relating to the Offered Securities as filed with the Commission pursuant to Rule
424 under the Act and any information deemed to be a part thereof pursuant to
Rule 434 under the Act. The term "preliminary prospectus" means any preliminary
prospectus supplement specifically relating to the Offered Securities together
with the Basic Prospectus. Any reference herein to any preliminary prospectus or
to the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act,
as of the date of such preliminary prospectus or the Prospectus, as the case may
be, and any reference herein to any amendment or supplement to any preliminary
prospectus or the Prospectus, except the reference in Section 4(c), shall be
deemed to refer to and include any documents filed after such date under the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and so
incorporated by reference.
2. Agreements to Sell and Purchase. The Company agrees to sell to the
Underwriters, and upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to the terms and
conditions of this Agreement and the applicable Pricing Agreement the
Underwriters agree to purchase from the Company, severally and not jointly, the
number of Offered Securities set forth opposite each Underwriter's respective
name in Exhibit A to such Pricing Agreement, at a purchase price specified
therein.
If any Offered Securities consist of shares of Preferred Stock and the
Prospectus so provides, such shares of Preferred Stock will be deposited by the
Company against delivery of receipts ("Depositary Receipts") to be issued by a
depositary to be named by the Company (the "Depositary") under a deposit
agreement (a "Deposit Agreement") between the Company, the Depositary and the
holders from time to time of the Depositary Receipts issued thereunder and
evidencing Depositary Shares. Each Depositary Share will represent the number
of deposited shares of Preferred Stock specified in the applicable prospectus
supplement and in Exhibit B to the applicable Pricing Agreement
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The terms and rights of any particular issuance and sale of Offered
Securities shall be as specified in the applicable Pricing Agreement and, if the
Offered Securities include Preferred Stock, in or pursuant to a resolution or
resolutions of the Board of Directors of the Company or a duly authorized
committee thereof and set forth in a certificate of designations (the
"Certificate of Designations") to be filed with the Secretary of State of the
State of Delaware pursuant to Section 151 of the General Corporation Law of the
State of Delaware (the "General Corporation Law").
Common Stock, Preferred Stock and Depositary Shares may be offered and sold
separately or as units, as specified in the applicable prospectus supplement and
in Exhibit B to the Pricing Agreement.
The particular sales of certain Offered Securities may be made from time to
time to the Underwriters specified in the applicable Pricing Agreement, for whom
you may act as Representatives. (The term "Representatives" also refers to a
single firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their representative.)
The obligation of the Company to issue and sell, and the obligation of you or
any of the Underwriters to purchase, shall be evidenced by the applicable
Pricing Agreement with respect to the Offered Securities specified therein, and,
prior to the execution of such Pricing Agreement, this Agreement shall not be
construed as an obligation of the Company to sell any Offered Securities or as
an obligation of the Underwriters to purchase any Offered Securities. A Pricing
Agreement in the form of Annex I shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and the applicable Pricing Agreement shall be
several and not joint.
Each Pricing Agreement shall specify the aggregate number of Offered
Securities that the Company proposes to issue and sell (the "Firm Securities")
and, with respect to any grant by the Company to the Underwriters of the option
described in Section 3 hereof, the maximum number of Offered Securities that the
Company proposes to issue and sell to cover over-allotments (the "Optional
Securities"), the initial public offering price of such Firm Securities and
Optional Securities or the manner of determining such price, the purchase price
to the Underwriters of such Firm Securities and Optional Securities, the names
of the Underwriters, the names of the Representatives of such Underwriters, the
number of such Firm Securities and Optional Securities, if any, to be purchased
by each Underwriter and the commission, if any, payable to the Underwriters with
respect thereto. The Pricing Agreement shall also specify (to the extent not
set forth in the Registration Statement and Prospectus with respect thereto)
the terms of such Firm Securities and Optional Securities.
Upon the execution of the Pricing Agreement applicable to any Offered
Securities and authorization by the Representatives of the release of the Firm
Securities, the Company understands
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that the Underwriters propose to offer the Firm Securities for sale upon the
terms and conditions set forth in the Prospectus, as amended or supplemented.
With respect to any Offered Securities purchased by an Underwriter that
such Underwriter continues to own or hold at any time on or after the 90th day
following the applicable Closing Date (as defined in Section 3), such
Underwriter agrees that upon receipt of written notice by the Representatives
from the Company of the Company's intention to bid for or purchase any Offered
Security or any security of the same class and series as the Offered Securities
or to take any other action, directly or indirectly, the taking of which would
be proscribed by Regulation M promulgated by the Commission under the Exchange
Act (or any successor or equivalent rule or regulation) during the distribution
of the Offered Securities, such Underwriter will, and will cause its "affiliated
purchasers" (as defined in Rule 100 of said Regulation) to, cease distributing
any Offered Securities for such period of time as the Company may deem necessary
so that the action or actions proposed to be taken by it directly or indirectly
may be taken in full compliance with such Regulation (or any successor or
equivalent rule or regulation).
3. Delivery and Payment: Delivery of and payment for the Firm Securities
shall be made on the date and at the time agreed to in the applicable Pricing
Agreement (such time and date are referred to herein as a "Closing Date"), at
the offices of 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 Firm
Securities may be varied by agreement between you and the Company.
Delivery of Firm Securities (in definitive form and registered in such
names as you shall request at least 48 hours prior to a Closing Date by written
notice of the Company) shall be made to you for the account of the respective
Underwriters against payment by you on behalf of the respective Underwriters of
the purchase price therefor by cashier or official bank check or checks payable
to the order of the Company in or by wire transfer to an account specified by
the Company of same day federal funds. The Company agrees to make the Firm
Securities (or Depository Receipts representing any Firm Securities) available
to you for inspection at least 24 hours prior to the Closing Date or such
shorter period of time as you may agree to.
If the applicable Pricing Agreement grants to the Underwriters the right
(an "Over-Allotment Option") to purchase at their election up to the number of
Optional Securities allocated to each of the several Underwriters in the
applicable Pricing Agreement, upon the terms and conditions specified herein and
therein, for the sole purpose of covering over-allotments in the sale of the
Firm Securities, such election to purchase Optional Securities may be exercised
by written notice from the Representatives within the period specified in the
applicable Pricing Agreement setting forth the aggregate number of Optional
Securities to be purchased, the number of Optional Securities to be purchased by
each of the Underwriters, and the date on which such Optional Securities are to
be delivered, as determined by the Representatives but in no event earlier than
the Closing Date, or, unless the Representatives and the Company otherwise agree
in writing, later than the time specified in the applicable Pricing Agreement.
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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 for offer or sale
in any jurisdiction or the initiation or threatening of any proceedings for
such purpose and (5) of the happening of any event during the period
mentioned in paragraph (d) below which makes any statement of a material
fact made in the Registration Statement or the Prospectus (as theretofore
amended or supplemented) untrue or which requires the making of any changes
in the Registration Statement or the Prospectus (as theretofore amended or
supplemented) in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading. The Company will use its reasonable best efforts to prevent
the issuance of any order suspending the effectiveness of the Registration
Statement or suspending the qualification of the Offered Securities for
offer or sale in any jurisdiction, and if any such order is issued, the
Company will make every reasonable effort to obtain the withdrawal of such
order at the earliest possible time.
(b) The Company will furnish to each of you, without charge, one
conformed copy of the Registration Statement and any post-effective
amendment thereto filed in connection with the offering of the Offered
Securities, including all financial statements and schedules, exhibits and
documents incorporated therein by reference (including exhibits
incorporated therein by reference to the extent not previously furnished to
you).
(c) The Company will give you advance notice of its intention to file
any amendment or supplement to the Registration Statement or the Prospectus
with respect to the Offered Securities, and will not file any such
amendment or supplement to which you shall reasonably object in writing.
(d) During the period of time that the Prospectus is required by law
to be delivered, the Company will deliver to you for delivery to each
Underwriter, without charge, as many copies of the Prospectus or any
amendment or supplement thereto as such Underwriter may reasonably
request. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the Underwriters and by all dealers to
whom the Offered Securities may be sold, both in connection with the
offering or sale of the Offered
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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 any Offered Securities by the
Underwriters, the Company will cooperate with you and counsel retained by
you on behalf of the Underwriters in connection with the registration or
qualification of Offered Securities (and any Common Stock issuable upon
conversion of any Offered Securities) for offer and sale under the
securities or Blue Sky laws of, and the determination of the eligibility of
Offered Securities for investment under the laws of, such jurisdictions as
you request; provided, that in no event shall the Company be obligated to
qualify to do business as a foreign corporation or as a securities dealer
in any jurisdiction where it is not now so qualified, to conform its
capitalization or the composition of its assets to the securities or Blue
Sky laws of any jurisdiction or to take any action which would subject 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 registration
or qualification of Offered Securities (and any Common Stock issuable upon
conversion of any Offered Securities) under such securities or Blue Sky
laws and in connection with the determination of the eligibility of Offered
Securities for investment under the laws of such jurisdictions as you may
designate.
(f) The Company will make generally available to its security holders
and to you consolidated earnings statements (which need not be audited)
that satisfy the provisions of Section 11(a) of the Act and Rule 158
thereunder.
(g) The Company will pay all expenses in connection with: (1) the
preparation, printing and filing of the Registration Statement, any
preliminary prospectus, the Prospectus, any legal investment memorandum and
Blue Sky memorandum as contemplated by Section
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4(e); (2) any fees charged by securities rating agencies for rating any of
the Offered Securities; (3) the preparation, issuance and delivery of the
Offered Securities (including Depositary Receipts evidencing Depositary
Shares) (other than transfer taxes); (4) the preparation, execution and
delivery of any Deposit Agreement and, to the extent set forth therein, the
fees and expenses of the Depositary; (5) the printing of any dealer
agreement; and (6) furnishing such copies of the Registration Statement,
the Prospectus and any preliminary prospectus, and all amendments and
supplements thereto, as may be requested for use in connection with the
offering and sale of Offered Securities by dealers to whom Offered
Securities may be sold.
(h) If this Agreement is terminated by you because any condition to
the obligations of you and the Underwriters set forth in Section 7 hereof
is not satisfied or because of any failure or refusal on the part of the
Company to comply with the terms of this Agreement or the applicable
Pricing Agreement, or if for any reason the Company shall be unable to
perform its obligations herein or therein, the Company will reimburse you
on behalf of the Underwriters for all out-of-pocket expenses (including the
fees and expenses of counsel retained by you on behalf of the Underwriters)
reasonably incurred by you in connection herewith. The Company will not in
any event be liable to you or any of the Underwriters for damages on
account of loss of anticipated profits.
(i) From the date hereof to and including the applicable Closing Date,
the Company will not offer or sell, or contract to sell, Offered Securities
pursuant to a public offering without your prior written consent.
5. Representations and Warranties of the Company. The Company represents
and warrants to each Underwriter that:
(a) the documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed (or, if any amendment
with respect to any such document was filed, when such amendment was filed)
with the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and any further documents so filed and incorporated
by reference during the period of the distribution of the Offered
Securities will, when they are filed with the Commission, conform in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission promulgated thereunder; none of such
documents, when it was filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and no
such further document, when it is filed, will contain an untrue statement
of a material fact or will omit to state a material fact required to be
stated
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therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not misleading;
(b) the Registration Statement, when declared effective by the
Commission, complied in all material respects with the requirements of the
Act; each preliminary prospectus, if any, relating to the Offered
Securities, filed pursuant to Rule 424 or Rule 434 under the Act, will
comply when so filed in all material respects with the Act; and when the
Prospectus is first filed with the Commission pursuant to Rule 424 or Rule
434 and as of the applicable Closing Date, the Registration Statement and
the Prospectus (as amended or supplemented, if applicable) will comply in
all material respects with the requirements of the Act. When it was
declared effective by the Commission, the Registration Statement did not,
and as of the date the Prospectus is first filed with the Commission
pursuant to Rule 424 or Rule 434 and as of the applicable Closing Date the
Registration Statement (as amended or supplemented, if applicable) will
not, contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein not misleading. When the Prospectus is first filed with
the Commission pursuant to Rule 424 or Rule 434 and as of the applicable
Closing Date, the Prospectus (as amended or supplemented, if applicable)
will not contain an untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were
made, not misleading. Notwithstanding the foregoing, this representation
and warranty does not apply to statements or omissions in the Registration
Statement or the Prospectus or any preliminary prospectus made in reliance
upon information furnished to the Company in writing by any Underwriter
through the Representatives expressly for use therein;
(c) the Offered Securities have been duly authorized by the Company
and conform to the descriptions thereof in the Prospectus and in the
related Pricing Agreement;
(d) if any of the Offered Securities is Common Stock, such Common
Stock has been duly and validly authorized and, when such Common Stock is
issued and delivered pursuant to this Agreement and the Pricing Agreement
and paid for by the Underwriters in accordance therewith, such Common Stock
will be duly and validly issued and fully paid and non-assessable;
(e) if any of the Offered Securities is Preferred Stock, such
Preferred Stock has been duly and validly authorized and, upon the filing
of a Certificate of Designations for such Preferred Stock with the Delaware
Secretary of State and the issuance and delivery of such Preferred Stock
against payment therefor by the Underwriters in accordance with this
Agreement and the Pricing Agreement, such Preferred Stock will be duly and
validly issued and fully paid and non-assessable; if such Preferred Stock
is convertible into Common Stock, the Common Stock initially issuable upon
conversion of such Preferred Stock has been reserved for issuance upon such
conversion and, when issued in accordance with the terms
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of the Certificate of Designations upon conversion of such Preferred Stock,
such Common Stock will be duly authorized, validly issued, fully paid and
non-assessable;
(f) if the Offered Securities include Preferred Stock and Depositary
Shares, the Deposit Agreement has been duly authorized and, when executed
and delivered by the Company at the Closing Date and, assuming due
authorization, execution and delivery by the Depositary, at such Closing
Date will constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles (regardless of whether the issue of
enforceability is considered in a proceeding at law or in equity); when
such Preferred Stock is issued and delivered to the Depositary against
receipt of Depositary Receipts evidencing such Depositary Shares and
payment therefor by the Underwriters in accordance with this Agreement and
the Pricing Agreement, such Depositary Shares will be duly and validly
issued and the persons in whose names the Depositary Receipts are
registered shall be entitled to the rights specified therein and in the
Deposit Agreement;
(g) the issuance and sale of the Offered Securities and the
fulfillment of the terms of this Agreement and the related Pricing
Agreement will not result in a breach of any of the terms or provisions of,
or constitute a default under, the Company's charter or by-laws or any
indenture, mortgage, deed of trust or other material agreement or
instrument to which the Company or any of its significant subsidiaries (as
such term is defined in Rule 1-02(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;
(h) KPMG Peat Marwick LLP, the Company's auditors, are independent
accountants as required by the Act;
(i) so long as may be required for the distribution of the Offered
Securities by any Underwriter or by any dealers that participate in the
distribution thereof, the Company will comply with all requirements under
the Exchange Act relating to the timely filing with the Commission of its
reports pursuant to Section 13 of the Exchange Act and of its proxy
statements pursuant to Section 14 of the Exchange Act; and
(j) except to the extent set forth in the Prospectus, the Company has
not received any notice of, nor does it have any actual knowledge of, any
failure by it or any of its significant subsidiaries to be in substantial
compliance with all existing statutes and regulations applicable to it or
such subsidiaries, which failure would materially and adversely affect the
conduct of the business of the Company and its subsidiaries, considered as
a whole.
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6. Indemnification: The Company agrees to indemnify and hold harmless
each Underwriter, and each person, if any, who controls each Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any preliminary prospectus, or
arising out of or based upon any omission or alleged omission to state therein
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they were made,
not misleading, except insofar as such omission or allegation thereof is based
upon information furnished in writing to the Company by an Underwriter through
the Representatives expressly for use therein; provided, however, that the
Company shall not indemnify an Underwriter or any person who controls such
Underwriter for any such losses, claims, damages or liabilities alleged by any
person who purchased Offered Securities from such Underwriter if the untrue
statement, omission or allegation thereof upon which such losses, claims,
damages or liabilities are based was made in: (i) any preliminary prospectus, if
a copy of the Prospectus (as then amended or supplemented) was not sent or given
by or on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of the Offered Securities to such person, and if the
Prospectus (as so amended or supplemented) corrected the untrue statement or
omission giving rise to such loss, claim, damage or liability; (ii) any
Prospectus used by such Underwriter or any person who controls such Underwriter,
after such time as the Company advised the Representatives that the filing of a
post-effective amendment or supplement thereto was required, except the
Prospectus as so amended or supplemented; or (iii) any Prospectus used after
such time as the obligation of the Company to keep the same current and
effective has expired. This indemnity will be in addition to any liability
which the Company may otherwise have.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against an Underwriter or any person controlling an
Underwriter in respect of which indemnity may be sought from the Company, such
Underwriter or such controlling person shall promptly notify the Company, in
writing, and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to you and the payment of all
expenses. Any omission to so notify the Company shall not, however, relieve the
Company from any liability which it may have to any indemnified party otherwise
than under this Section 6. An Underwriter or any person controlling an
Underwriter shall have the right to employ separate counsel in any such action
or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be at such Underwriter's expense or the
expense of such controlling person unless (a) the Company has agreed to pay such
fees and expenses or (b) the Company shall have failed to assume the defense of
such action or proceeding and employ counsel reasonably satisfactory to you in
any such action or proceeding or (c) the named parties to any such action or
proceeding (including any impleaded parties) include both such Underwriter or
such controlling person and the Company, and you shall have been advised by your
counsel that there may be a conflict of interest between such Underwriter or
controlling person and the Company in the conduct of the defense of
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such action (in which case, if such Underwriter or such controlling person
notifies the Company in writing that it elects to employ separate counsel at the
expense of the Company, the Company shall not have the right to assume the
defense of such action or proceeding on behalf of such Underwriter or such
controlling person), it being understood, however, that the Company shall not,
in connection with any one such action or proceeding or separate but
substantially similar or related actions or proceedings arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of more than one separate firm of attorneys (unless the members of such
firm are not admitted to practice in a jurisdiction where an action is pending,
in which case the Company shall pay the reasonable fees and expenses of one
additional firm of attorneys to act as local counsel in such jurisdiction,
provided the services of such counsel are substantially limited to that of
appearing as attorneys of record) at any time for all indemnified parties, which
firm shall be designated by you. The Company shall not be liable for any
settlement of any such action or 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 through the Representatives expressly
for use in the Registration Statement, the Prospectus, or any amendment or
supplement thereto, or any preliminary prospectus. In case any action or
proceeding shall be brought against the Company or its directors or officers or
any such controlling person, in respect of which indemnity may be sought against
one or more of the several Underwriters, such Underwriters acting through the
Representatives shall have the rights and duties given to the Company, and the
Company or its directors or officers or such controlling person shall have the
rights and duties given to you and the several Underwriters, by the preceding
paragraph.
If the indemnification provided for in this Section 6 is unavailable to an
indemnified party under the first or third paragraph hereof in respect of any
losses, claims, damages or liabilities referred to therein (other than by 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
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provided by clause (i) above is not permitted by applicable law, in such
proportion as is appropriate to reflect not only the relative benefits referred
to in clause (i) above but also the relative fault of the Company on the one
hand and the Underwriters on the other in connection with the statements or
omissions which resulted in such losses, claims, damages or liabilities, as well
as any other relevant equitable considerations. The relative benefits received
by the Company on the one hand and the Underwriters on the other in connection
with the offering of the Offered Securities shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered Securities
received by the Company bear to the total underwriting discounts received by the
Underwriters in respects thereof. The relative fault of the Company on the one
hand and of the Underwriters on the other shall be determined by reference to,
among other things, whether the untrue or alleged untrue statement of a material
fact or the omission or alleged omission to state a material fact related to
information supplied by the Company or by the Underwriters through the
Representatives and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The amount paid or payable by a party as a result of the losses, claims,
damages, and liabilities referred to above shall be deemed to include, subject
to the limitations set forth in the second paragraph of this Section 6, any
legal or other fees or expenses reasonably incurred by such party in connection
with investigating or defending any action or claim.
The Company and each Underwriter agrees that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6, the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total
price at which the Offered Securities were offered to the public exceeds the
amount of any damages which the Underwriters have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution or indemnification from any person
who was not guilty of such fraudulent misrepresentation.
The indemnity and contribution agreements contained in this Section 6 and
the representations and warranties of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (a) any
investigation made by or on behalf of any Underwriter, by or on behalf of any
person controlling any Underwriter or by or behalf of the Company, (b)
acceptance of any of the Offered Securities and payment therefor or (c) any
termination of this Agreement or the applicable Pricing Agreement.
7. Conditions of the Obligations of You and the Underwriters: The
obligations of you and the Underwriters hereunder and under the applicable
Pricing Agreement are subject to the following conditions:
(a) at the applicable Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued and no
proceedings for that purpose shall
-12-
be pending or threatened by the Commission; and the Representatives shall
have received a certificate, dated the applicable Closing Date and signed
by the Chairman of the Board, the President, an Executive Vice President or
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 (f) of this Section 7;
(b) the Representatives shall have received opinions, dated the
applicable Closing Date and reasonably satisfactory to counsel retained by
the Representatives on behalf of the Underwriters, (A) from Messrs. Xxxx,
Raywid & Xxxxxxxxx or such other special communications counsel for the
Company as may be reasonably satisfactory to the Representatives, (B) from
the General Counsel of the Company to the following effect and covering
such additional matters as the Representatives may reasonably request:
(i) the Company and each of its significant subsidiaries is a
corporation duly organized, validly existing and in good standing
under the laws of the jurisdiction of its incorporation and has the
corporate power and authority to carry on its business as described in
the Prospectus (as amended or supplemented, if applicable) and the
Company has the corporate power and authority to execute and deliver
and perform its obligations under this Agreement and the Pricing
Agreement, and to issue and sell the Offered Securities as
contemplated by this Agreement and the Pricing Agreement.
(ii) the Company and each of its significant subsidiaries is
duly qualified as a foreign corporation and is in good standing in
each jurisdiction in which the failure to so qualify would, in the
aggregate, have a material adverse effect upon the financial
condition, results of operations, business or properties of the
Company and its subsidiaries taken as a whole;
(iii) all corporate proceedings legally required in connection
with the authorization and issuance of the Offered Securities and the
sale of the Offered Securities by the Company in accordance with the
terms of this Agreement and the Pricing Agreement have been taken;
(iv) to the best knowledge of such counsel, there is no legal
or governmental proceeding pending or threatened against the Company
or any of its subsidiaries which is required to be disclosed in the
Prospectus (as amended or supplemented, if applicable) and is not so
disclosed and correctly summarized therein;
(v) to the best knowledge of such counsel, there is no
contract or other document known to such counsel of a character
required to be described in the Prospectus (as amended or
supplemented, if applicable) or to be filed as an exhibit
-13-
to the Registration Statement (or to a document incorporated by
reference therein) that is not described or filed as required;
(vi) the execution and delivery of this Agreement and of the
Pricing Agreement, the issuance of the Offered Securities and the
fulfillment of the terms herein and therein contained do not conflict
with, or result in a breach of, or constitute a default under, the
charter or by-laws of the Company or, to the best knowledge of such
counsel, conflict in any material respect with, or result in a
material breach of or constitute a material default under any material
agreement, indenture or other instrument known to such counsel to
which the Company or any of its significant subsidiaries is a party or
by which it is bound, or result in a violation of any law,
administrative regulation or court or governmental decree known to
such counsel applicable to the Company or any of its subsidiaries,
except that such counsel need not express any opinion with respect to
(i) matters opined upon by special communications counsel and Messrs.
Xxxxxxx & Xxxxxx or (ii) the Blue Sky or securities laws of any
jurisdiction; and
(vii) to the best knowledge of such counsel, neither the
Registration Statement nor the Prospectus, as amended or supplemented,
if applicable (except as to the financial statements and schedules and
any other financial and statistical data contained or incorporated by
reference in the Registration Statement or Prospectus, as to which no
opinion need be expressed), contained, as of the date the Prospectus
was first filed with the Commission pursuant to Rule 424, or contains,
as of the applicable Closing Date, any untrue statement of a material
fact or omits to state any material fact required to be stated therein
or necessary to make the statements therein (in the case of the
Prospectus as amended or supplemented, if applicable, in light of the
circumstances under which they were made,) not misleading.
(C) from Messrs. Xxxxxxx & Xxxxxx, or from such other special counsel
for the Company as may be reasonably satisfactory to the Representatives,
to the following effect and covering such additional matters as the
Representatives may reasonably request:
(i) the execution and delivery of this Agreement and of the
Pricing Agreement, the issuance of the Offered Securities and the
fulfillment of the terms herein and therein contained do not, to the
best knowledge of such counsel, result in a material breach of or
constitute a material default under any material agreement for
borrowed money known to such counsel to which the Company or any of
its significant subsidiaries is a party or by which it is bound; and
(ii) the Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and is not
subject to regulation under such Act.
-14-
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 the
Representatives, to the following effect and covering such additional
matters as the Representatives may reasonably request:
(i) this Agreement and the applicable Pricing Agreement have
been duly authorized, executed and delivered by the Company;
(ii) if any of the Offered Securities is Common Stock, such
Common Stock has been duly and validly authorized and, when such
Common Stock is issued, signed by the transfer agent and delivered
pursuant to this Agreement and the Pricing Agreement and paid for by
the Underwriters in accordance therewith, such Common Stock will be
duly and validly issued and fully paid and non-assessable;
(iii) if any of the Offered Securities is Preferred Stock, such
Preferred Stock has been duly and validly authorized and, upon the
filing of a Certificate of Designations for such Preferred Stock with
the Delaware Secretary of State and the issuance, the execution by the
transfer agent and delivery of such Preferred Stock against payment
therefor by the Underwriters in accordance with this Agreement and the
Pricing Agreement, such Preferred Stock will be duly and validly
issued and fully paid and non-assessable; if such Preferred Stock is
convertible into Common Stock, the Common Stock initially issuable
upon conversion of such Preferred Stock has been reserved for issuance
upon such conversion and, when issued in accordance with the terms of
the Certificate of Designations upon conversion of such Preferred
Stock, such Common Stock will be duly authorized, validly issued,
fully paid and non-assessable;
(iv) if the Offered Securities include Preferred Stock and
Depositary Shares, the Deposit Agreement has been duly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the Depositary, constitutes a valid and
legally binding agreement of the Company enforceable in accordance
with its terms, subject as to enforcement to bankruptcy, insolvency,
reorganization, moratorium and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles (regardless of whether the issue of enforceability is
considered in a proceeding at law or in equity); and the Deposit
Agreement conforms to the description thereof in the Prospectus, as
amended or supplemented;
(v) the Registration Statement is effective under the Act and,
to the best knowledge of such counsel, no stop order suspending the
effectiveness of the
-15-
Registration Statement has been issued and no proceeding for that
purpose is pending or threatened by the Commission; and
(vi) the Offered Securities conform in all material respects as
to legal matters to the descriptions thereof in the Prospectus, as
amended or supplemented.
In addition, such counsel shall state that "The Registration Statement and
the Prospectus, as amended or supplemented, if applicable (except as to (x) the
financial statements and schedules and any other financial and statistical data
contained or incorporated by reference therein and (y) the documents
incorporated or deemed to be incorporated by reference therein, as to which no
opinion is expressed), complied, as of the date the Prospectus was first filed
with the Commission pursuant to Rule 424, and comply, as of the date hereof, as
to form in all material respects with the requirements of the Act and the rules
and regulations of the Commission under the Act (the "Rules"). In passing upon
the form of such documents, we have necessarily assumed the correctness and
completeness of the statements made or included therein by the Company and take
no responsibility for the accuracy, completeness or fairness of the statements
contained therein except insofar as such statements relate to the description of
the Offered Securities or relate to us. However, in connection with the
preparation of the Registration Statement and the Prospectus, we had conferences
with certain officers and other representatives of the Company, and our
examination of the Registration Statement and the Prospectus and our discussions
in such conferences did not disclose to us any information (relying as to the
materiality of any such information primarily upon officers and other
representatives of the Company) which gave us reason to believe that either the
Registration Statement or the Prospectus, as amended or supplemented, if
applicable (except as to (x) the financial statements and schedules and any
other financial and statistical data contained or incorporated by reference
therein and (y) the documents incorporated therein or deemed to be incorporated
by reference therein, as to which no belief is expressed), contained, as of the
date the Prospectus was first filed with the Commission pursuant to Rule 424, or
contains, as of the date hereof, any untrue statement of a material fact or
omitted or omits to state any material fact required to be stated therein or
necessary to make the statement therein (in the cases of the Prospectus, as
amended, or supplemented, if applicable, in light of the circumstances under
which they were made) not misleading."
In giving the opinions required under this Section 7(b), subparagraphs (A),
(B), (C) and (D), each such counsel may rely (x) as to matters of fact, to the
extent they deem proper, upon certificates of officers of the Company, public
officials and others, and (y) as to matters of law if other than the law of the
United States or Colorado (in the case of Messrs. Xxxxxxx & Xxxxxx 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 the Representatives and counsel retained by the
Representatives on behalf of the Underwriters;
-16-
(c) if the Offered Securities include Preferred Stock and Depositary
Shares, the Representatives shall have received on the applicable Closing
Date from counsel to the Depositary an opinion, dated such Closing Date, to
the following effect;
(i) the Depositary has full power, authority and legal right to
execute, deliver and carry out the terms of the Deposit Agreement;
(ii) the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and, assuming due authorization, execution
and delivery by the Company, constitutes a valid and legally binding
agreement of the Depositary enforceable in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles
(regardless of whether the issue of enforceability is considered in a
proceeding at law or in equity); and
(iii) upon due issuance by the Depositary of Depositary Shares
evidenced by Depositary Receipts in accordance with the terms of the
Deposit Agreement against deposit in accordance with the Deposit
Agreement of validly issued, fully paid and non-assessable shares of
Preferred Stock, such Depositary Shares will be duly and validly
issued and the persons in whose names the Depositary Receipts are
registered shall be entitled to the rights specified therein and in
the Deposit Agreement.
(d) the Representatives shall have received on the applicable Closing
Date from counsel retained by the Representatives on behalf of the
Underwriters an opinion with respect to the Offered Securities, the
Registration Statement and the Prospectus in the form customarily given by
such firm, including an opinion to the effect that the Registration
Statement and the Prospectus, as amended or supplemented, if applicable
(except as to (x) the financial statements and schedules and any other
financial and statistical data contained or incorporated by reference
therein, and (y) the documents incorporated or deemed to be incorporated by
reference therein, as to which no opinion need be expressed) comply as to
form in all material respects with the Act;
(e) on the applicable Closing Date the Representatives shall have
received a letter addressed to the Representatives from KPMG Peat Marwick
LLP, independent auditors for the Company, reasonably satisfactory to the
Representatives;
(f) the representations and warranties of the Company in this
Agreement shall be true and correct on and as of the applicable Closing
Date; the Company shall have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
applicable Closing Date; and except as reflected in or contemplated
-17-
by the Registration Statement and the Prospectus, since the respective
dates as of which information is given in the Registration Statement and
the Prospectus, there shall not have been, at the applicable Closing Date,
any material adverse change in the condition (financial or otherwise),
business, prospects or results of operations of the Company and its
subsidiaries, considered as a whole; and
(g) subsequent to the date of the applicable Pricing Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in or affecting particularly the business, prospects or
financial affairs of the Company and its subsidiaries, considered as a
whole which, in the reasonable judgment of the Representatives, is so
material and adverse that it would be impracticable to proceed with the
public offering or delivery of the Offered Securities on the terms and in
the manner contemplated by the Prospectus.
8. Termination of Pricing Agreement. The obligation of the Underwriters
to purchase the Offered Securities may be terminated at any time prior to the
applicable Closing Date by notice to the Company from the Representatives,
without liability on the part of the Underwriters to the Company, if, on or
prior to such date (i) additional material governmental restrictions, not in
force and effect on the date of the applicable Pricing Agreement, shall have
been imposed upon trading in securities generally, or minimum or maximum prices
shall have been generally established on the New York Stock Exchange or on the
American Stock Exchange, or trading in securities generally shall have been
suspended on either such Exchange or trading in the Common Stock or securities
of the Company of the same class as the Offered Securities in the over-the-
counter market shall have been suspended or a general banking moratorium shall
have been established by Federal or New York authorities, or (ii) a war
involving the United States of America or other national calamity shall have
occurred or shall have accelerated to such an extent as to affect adversely the
marketability of the Offered Securities.
9. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail on the applicable Closing Date to purchase the Firm
Securities or Optional Securities, as the case may be, that it or they are
obligated to purchase hereunder (the "Defaulted Securities"), the
Representatives shall have the right, within 24 hours thereafter, to make
arrangements for one or more of the non-defaulting Underwriters, or any
substitute underwriters, to purchase all, but not less than all, of the
Defaulted Securities in such amounts as may be approved by the Representatives
and upon the terms herein set forth; provided, however, that if the
Representatives have not completed such arrangements within such 24-hour period,
then:
(a) if the amount of Defaulted Securities does not exceed 10% of the
aggregate amount of the Firm Securities or the Optional Securities, as the
case may be, the non-defaulting Underwriters shall be obligated to purchase
the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
-18-
(b) if the amount of Defaulted Securities exceeds 10% of the aggregate
amount of Firm Securities or Optional Securities, as the case may be, the
Company shall be entitled to an additional 24-hour period to find one or
more substitute underwriters satisfactory to the Representatives in their
reasonable discretion to purchase such Defaulted Securities.
In the event of any such default either the Representatives or the Company
shall have the right to postpone the applicable Closing Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements relating to
the purchase of the Offered Securities.
If the amount of Defaulted Securities exceeds 10% of the aggregate amount
of the Firm Securities or the Optional Securities, and neither the
Representatives nor the Company make arrangements pursuant to this Section 9
within the period stated for the purchase of the Defaulted Securities, the
applicable Pricing Agreement shall terminate with respect to such Firm
Securities or Optional Securities, as the case may be, without liability on the
part of any non-defaulting Underwriter to the Company except as provided in
Section 6.
No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
A substitute underwriter hereunder shall be an Underwriter for all purposes
of this Agreement and the applicable Pricing Agreement.
10. Miscellaneous: Notice given pursuant to any of the provisions of this
Agreement or the applicable Pricing Agreement shall be in writing and shall be
mailed or delivered (a) to the Company at its principal executive office located
at Terrace Tower II, 0000 XXX Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000,
attention: Chief Financial Officer, or (b) to you at the address specified in
the applicable Pricing Agreement. Any notice under Section 8 hereof may be
telex or telephone, but if so made shall be subsequently confirmed in writing.
This Agreement and the applicable Pricing Agreement have been and are made
solely for the benefit of the Underwriters and the Company and of the
controlling persons, directors and officers referred to in Section 6 hereof, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or the applicable Pricing
Agreement. The term "successors and assigns" as used in this Agreement shall not
include a purchaser, as such purchaser, of Offered Securities from any
Underwriter.
This Agreement and the applicable Pricing Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
-19-
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the Underwriters.
Very truly yours,
TELE-COMMUNICATIONS, INC.
By:
------------------------------
Name:
Title:
Confirmed as of the date
first above mentioned
By:
-----------------------------
Name:
Title:
-20-
Annex I
TELE-COMMUNICATIONS, INC.
PRICING AGREEMENT
, 19
---------- -- --
Dear Sirs:
Tele-Communications, Inc., a Delaware corporation (the "Company"),
proposes, subject to terms and conditions stated herein and in the Underwriting
Agreement dated ___________, 19__ (the "Underwriting Agreement"), to issue
and sell to each Underwriter named in Exhibit A hereto (each an "Underwriter")
certain securities (the "Offered Securities") described in Exhibit B hereto.
Each of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to a part of this Pricing
Agreement to the same extent as if such provisions had been set forth in full
herein. Each of the representations and warranties set forth in the
Underwriting Agreement shall be deemed to have been made at and as of the date
of this Pricing Agreement, except that each representation and warranty with
respect to the Prospectus shall be deemed to be a representation and warranty as
of the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Offered Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Terms not otherwise defined herein shall have the meanings
ascribed to them in the Underwriting Agreement.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Offered Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and the Underwriting
Agreement incorporated herein by reference, the Company agrees to sell to each
Underwriter, and each Underwriter agrees to purchase from the Company, at a
purchase price to each Underwriter set forth in Exhibit A hereto, the number of
Firm Securities set forth opposite the name of such Underwriter
in Exhibit A hereto. If and to the extent that the Representatives exercise the
election to purchase Optional Securities as provided below, the Company agrees
to sell to each Underwriter, and each Underwriter agrees to purchase from the
Company at the purchase price to each Underwriter set forth in Exhibit A hereto,
that portion of the number of Optional Securities as to which such election has
been exercised.
The Company hereby grants to each Underwriter, subject to the terms set
forth herein and in the Underwriting Agreement, the right to purchase at its
election up to the number of Optional Securities set forth opposite the name of
such Underwriter in Exhibit A hereto on the terms referred to in the paragraph
above for the sole purpose of covering over-allotments in the sale of the Firm
Securities.
[Each Underwriter (i) has not offered or sold, and will not offer or sell,
in the United Kingdom, by means of any document, any Offered Securities other
than to persons whose ordinary business is to buy or sell shares or debentures,
whether as principal or agent (except under circumstances which do not
constitute an offer to the public within the meaning of the Companies Act 1985);
(ii) has complied and will comply with all applicable provisions of the
Financial Services Xxx 0000 with respect to anything done by it in relation to
the Offered Securities in, from or otherwise involving the United Kingdom; and
(iii) has only issued or passed on, and will only issue and pass on to any
person in the United Kingdom, any document received by it in conjunction with
the issue of the Offered Securities if that person is of a kind described in
Article 9(3) of the Financial Services Xxx 0000 (Investment Advertisements)
(Exemptions) Order 1988 or is a person to whom the document may otherwise
lawfully be issued or passed on.]
Delivery and payment for the Firm Securities shall be made at 10:00 a.m.
New York time on , (the "Closing Date") at the
offices of Xxxxx & Xxxxx, L.L.P., 000 Xxxxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx
00000. The Closing Date and the place of delivery of and payment for the Firm
Securities may be varied by agreement between the Representatives and the
Company.
Any election to purchase Optional Securities may be exercised by written
notice from the Representatives to the Company given within a period of 30 days
after the date of this Agreement, setting forth an aggregate number of Optional
Securities to be purchased, the number of Optional Securities to be purchased by
each Underwriter, and the date on which such Optional Securities are to be
delivered as determined by the Representatives, but in no event earlier than the
Closing Date.
- 2 -
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, this
Pricing Agreement, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
the Underwriter and the Company.
Very truly yours,
Tele-Communications, Inc.
By:
----------------------------
Name:
Title:
Confirmed as of the date
first above mentioned
By:
------------------------
Name:
Title:
- 3 -
Exhibit A
[Names of Underwriters, Number of Offered Securities and Purchase Price]
Exhibit B
[Terms of Offered Securities]
