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EXHIBIT 1
Cumulative Exchangeable Preferred Stock, Series A
TCI COMMUNICATIONS, INC.
(a Delaware Corporation)
PURCHASE AGREEMENT
January __, 1996
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
CS FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
x/x XXXXXXX XXXXX & XX.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
Xxxxxxx Xxxxx World Headquarters
North Tower
World Financial Center
Xxx Xxxx, Xxx Xxxx 00000-0000
Dear Sirs:
Each of TCI Communications, Inc., a corporation formed under the laws
of the State of Delaware (the "Company"), and Tele-Communications, Inc. a
Delaware corporation (the "Parent"), confirms its agreement with Xxxxxxx Lynch,
Pierce, Xxxxxx & Xxxxx Incorporated ("Xxxxxxx Xxxxx"), CS First Boston
Corporation, Xxxxxx Brothers Inc. and Xxxxxx Xxxxxxx & Co. Incorporated
(collectively, the "Underwriters," which term shall include any underwriter
substituted as hereinafter provided in Section 9 hereof) with respect to the
issue and sale by the Company and the purchase by the Underwriters, acting
severally and not jointly, of the respective number of shares of the Company's
Cumulative Exchangeable Preferred Stock, Series A (the "Preferred Securities")
set forth in Schedule A, and with respect to the grant by the Company to the
Underwriters, acting severally and not jointly, of the option described in
Section 2(b) hereof to purchase up to an additional 300,000 Preferred Securities
to cover over-allotments, if any. Each of the Preferred Securities is
exchangeable (unless previously redeemed) at the option of the holder commencing
January __, 2001, for __ shares of Series A TCI Group Common Stock (the "Series
A TCI Group Common Stock") of the Parent. The Parent will irrevocably and
unconditionally guarantee, on a subordinated basis, the payment of dividends by
the Company on the Preferred Securities
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(but only if and to the extent declared by the Company's Board of Directors) and
the redemption price (including accumulated and unpaid dividends) payable with
respect to the Preferred Securities (the "Guarantee"). The Company may elect to
make any dividend, redemption or liquidation payment in cash, by the delivery of
shares of Series A TCI Group Common Stock or by any combination of the foregoing
forms of consideration elected by the Company. The aforesaid 2,000,000 shares of
Preferred Securities (the "Initial Securities") to be purchased by the
Underwriters and all or any part of the 300,000 shares of Preferred Securities
subject to the option described in Section 2(b) hereof (the "Option
Securities"), together in each instance with the Guarantee, are hereinafter
called, collectively, the "Offered Securities".
The Company and the Parent understand that the Underwriters propose to
make a public offering of the Offered Securities as soon as the Underwriters
deem advisable after this Agreement has been executed and delivered.
SECTION 1 Registration Statement and Prospectus. The Company
and the Parent have filed with the Securities and Exchange Commission (the
"Commission") a registration statement on Form S-3 (No. 33-64127) covering the
registration of the Offered Securities under the Securities Act of 1933, as
amended (the "1933 Act"), including the related preliminary prospectus or
prospectuses. Promptly after execution and delivery of this Agreement, the
Company and the Parent will either (i) prepare and file a prospectus in
accordance with the provisions of Rule 430A ("Rule 430A") of the rules and
regulations of the Commission under the 1933 Act (the "1933 Act Regulations")
and paragraph (b) of Rule 424 ("Rule 424(b)") of the 1933 Act Regulations or
(ii) if the Company has elected to rely upon Rule 434 ("Rule 434") of the 1933
Act Regulations, prepare and file a term sheet (a "Term Sheet") in accordance
with the provisions of Rule 434 and Rule 424(b). The information included in
such prospectus or in such Term Sheet, as the case may be, that was omitted from
such registration statement at the time it became effective but that is deemed
to be part of such registration statement at the time it became effective (a)
pursuant to paragraph (b) of Rule 430A is referred to as "Rule 430A Information"
or (b) pursuant to paragraph (d) of Rule 434 is referred to as "Rule 434
Information." Each prospectus used before such registration statement became
effective, and any prospectus that omitted, as applicable, the Rule 430A
Information or the Rule 434 Information, that was used after such effectiveness
and prior to the execution and delivery of this Agreement, is herein called a
"preliminary prospectus." Such registration statement, including the exhibits
thereto, schedules thereto, if any, and the documents incorporated by reference
therein pursuant to Item 12 of Form S-3 under the 1933 Act, at the time it
became effective and including the Rule 430A Information and the Rule 434
Information, as applicable, is herein called the "Registration Statement." Any
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registration statement filed pursuant to Rule 462(b) of the 1933 Act Regulations
is herein referred to as the "Rule 462(b) Registration Statement," and after
such filing the term "Registration Statement" shall include the Rule 462(b)
Registration Statement. The final prospectus, including the documents
incorporated by reference therein pursuant to Item 12 of Form S-3 under the 1933
Act, in the form first furnished to the Underwriters for use in connection with
the offering of the Offered Securities is herein called the "Prospectus." If
Rule 434 is relied on, the term "Prospectus" shall refer to the preliminary
prospectus dated January __, 1996 together with the Term Sheet and all
references in this Agreement to the date of the Prospectus shall mean the date
of the Term Sheet. For purposes of this Agreement, all references to the
Registration Statement, any preliminary prospectus, the Prospectus or any Term
Sheet or any amendment or supplement to any of the foregoing shall be deemed to
include the copy filed with the Commission pursuant to its Electronic Data
Gathering, Analysis and Retrieval system ("XXXXX").
All references in this Agreement to financial statements and schedules
and other information which is "contained," "included" or "stated" in the
Registration Statement, any preliminary prospectus or the Prospectus (or other
references of like import) shall be deemed to mean and include all such
financial statements and schedules and other information which is incorporated
by reference in the Registration Statement, any preliminary prospectus or the
Prospectus, as the case may be; and all references in this Agreement to
amendments or supplements to the Registration Statement, any preliminary
prospectus or the Prospectus shall be deemed to mean and include the filing of
any document under the Securities Exchange Act of 1934 (the "1934 Act") which is
incorporated by reference in the Registration Statement, such preliminary
prospectus or the Prospectus, as the case may be.
SECTION 2 Agreements to Sell and Purchase.
(a) On the basis of the representations and warranties herein contained
and subject to the terms and conditions herein set forth, the Company agrees to
sell to each Underwriter, severally and not jointly, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, at the price per
share set forth in Schedule B, the number of Initial Securities set forth in
Schedule A opposite the name of such Underwriter, plus any additional number of
Initial Securities which such Underwriter may become obligated to purchase
pursuant to the provisions of Section 9 hereof.
(b) In addition, on the basis of the representations and warranties
herein contained and subject to the terms and conditions herein set forth, the
Company hereby grants an option to the Underwriters, severally and not jointly,
to purchase up to an additional 300,000 Option Securities at the price per share
set
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forth in Schedule B. The option hereby granted will expire 30 days after the
date hereof and may be exercised in whole or in part from time to time only for
the purpose of covering over-allotments which may be made in connection with the
offering and distribution of the Initial Securities upon notice by the
Underwriters to the Company setting forth the number of Option Securities as to
which the several Underwriters are exercising the option and the time and date
of payment for and delivery of such Option Securities. Such time and date of
delivery for the Option Securities (the "Date of Delivery") shall be determined
by the Underwriters, but shall not be, unless otherwise agreed upon by the
Underwriters, the Company and the Parent, later than seven full business days
after the exercise of said option, and in no event prior to the Closing Date, as
hereinafter defined. If the option is exercised as to all or any portion of the
Option Securities, each of the Underwriters, acting severally and not jointly,
will purchase that proportion of the total number of Option Securities then
being purchased which the number of Initial Securities set forth in Schedule A
opposite the name of such Underwriter bears to the total number of Initial
Securities, subject in each case to such adjustments as the Underwriters in
their discretion shall make to eliminate any sales or purchases of fractional
shares.
SECTION 3 Delivery and Payment.
Payment of the purchase price for, and delivery of certificates for,
the Initial Securities to be purchased by the Underwriters shall be made at the
offices of Xxxxx & Xxxxx, L.L.P., 000 Xxxxx Xxxxxx, Xxxxx 0000, Xxx Xxxx, Xxx
Xxxx 00000-0000, or at such other place as shall be agreed upon by the
Underwriters, the Company and the Parent, at 10:00 A.M. on the third business
day following the date hereof, or such other time not later than ten business
days after such date as shall be agreed upon by the Underwriters, the Company
and the Parent (such time and date of payment and delivery being herein called
the "Closing Date"). In addition, in the event that any or all of the Option
Securities are purchased by the several Underwriters, payment of the purchase
price, and delivery of certificates, for such Option Securities shall be made at
the above-mentioned offices of Xxxxx & Xxxxx, L.L.P., or at such other place as
shall be agreed upon by the Underwriters, the Company and the Parent, on the
Date of Delivery as specified in the notice from the Underwriters to the
Company. Payment shall be made to the Company by certified or official bank
check or checks drawn in New York Clearing House funds or similar next day funds
payable to the order of the Company against delivery to the Underwriters for the
account of the several Underwriters of certificates for the Offered Securities
to be purchased by it. Certificates for the Offered Securities shall be in such
denominations and registered in such name as the Underwriters may request in
writing at least one business day before the Closing Date or the Date of
Delivery, as the case may be. The certificates
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for the Initial Securities and the Option Securities will be made available for
examination and packaging by the Underwriters not later than 10:00 A.M. on the
last business day prior to the Closing Date or the Date of Delivery, as the case
may be, at the offices of the transfer agent for the Preferred Securities in New
York City. It is understood that each Underwriter has authorized Xxxxxxx Xxxxx,
for its account, to accept delivery of, to issue a receipt for, and make payment
of the purchase price for, the Offered Securities which it has agreed to
purchase. Xxxxxxx Xxxxx, individually and not as representative of the
Underwriters, may (but shall not be obligated to) make payment of the purchase
price for the Offered Securities to be purchased by any Underwriter whose check
has not been received by Closing Time, but such payment shall not relieve such
Underwriter from its obligations hereunder.
SECTION 4 Covenants of the Company and the Parent. Each of the
Company and the Parent, jointly and severally, covenants with each Underwriter
as follows:
(a) The Company and the Parent, subject to Section 4(c), will
comply with the requirements of Rule 430A or Rule 434, as applicable,
and will notify the Underwriters immediately, and confirm the notice in
writing, (1) of the effectiveness of any post-effective amendment to
the Registration Statement, and, if Rule 430A of the 1933 Act
Regulations is being relied upon, of the filing of the amended
Prospectus pursuant to Rule 430A and Rule 424(b), (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, any order
preventing or suspending the use of any preliminary prospectus or the
initiation or threatening of any proceedings for that purpose, (4) of
the receipt by the Company or the Parent 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 and the Parent will use their reasonable best
efforts to prevent the issuance of any order suspending the
effectiveness of the Registration Statement or
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any order preventing or suspending the use of any preliminary
prospectus or suspending the qualification of the Offered Securities
for offer or sale in any jurisdiction, and if any such order is issued,
the Company and the Parent will make every reasonable effort to obtain
the withdrawal of such order at the earliest possible time.
(b) To furnish to each of the Underwriters, without charge, one
conformed copy of the Registration Statement and any supplement and
post-effective amendment thereto, including all financial statements
and schedules, exhibits and documents incorporated therein by reference
(including exhibits incorporated therein by reference to the extent not
previously furnished to the Underwriters) and to deliver to the
Underwriters the number of conformed copies of the Registration
Statement and any post-effective amendment thereto, excluding exhibits,
as the Underwriters or their counsel may reasonably request.
(c) To give the Underwriters advance notice of their intention
to file any amendment or supplement to the Registration Statement
(including any filing under Rule 462(b)) or the Prospectus with respect
to the Offered Securities, and not to file any such amendment or
supplement to which the Underwriters shall reasonably object in
writing.
(d) During the period of time that the Prospectus is required
by law to be delivered, to deliver to each Underwriter, without charge,
as many copies of the Prospectus or any amendment or supplement thereto
as such Underwriter may reasonably request. Each of the Company and the
Parent consents to the use of the Prospectus or any amendment or
supplement thereto by the several 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 or the Parent 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 and the Parent will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and shall in
any event forthwith file all reports and any definitive proxy statement
or information statement required to be filed by the Company or the
Parent with the Commission pursuant to Section 13 or 14 of the 1934 Act
subsequent to the date of the Prospectus, and will deliver to each
Underwriter, without charge, such number
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of copies thereof as such Underwriter may reasonably request. If during
such period of time any event shall occur which in the judgment of the
Underwriters should be so set forth in the Prospectus, or which in the
judgment of the Underwriters makes it necessary to so supplement or
amend the Prospectus, the Company and the Parent will consult with the
Underwriters concerning the necessity of filing with the Commission a
supplement or amendment to the Prospectus or a report pursuant to
Section 13 or 14 of the 1934 Act.
(e) Prior to any public offering of any Offered Securities by
the Underwriters, to cooperate with the Underwriters and counsel
retained by the Underwriters in connection with the registration or
qualification of the Offered Securities (and any securities issuable
upon conversion, exercise or exchange of the Offered Securities) 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 the Underwriters
may request; provided, that in no event shall either the Company or the
Parent 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 either such party to taxation or
general service of process in any jurisdiction where it is not now so
subject. The Company and the Parent will pay all reasonable fees and
expenses (including reasonable counsel fees and expenses) relating to
registration or qualification of Offered Securities (and any securities
issuable upon conversion, exercise or exchange 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 the Underwriters may
designate. In each jurisdiction in which the Offered Securities have
been so qualified, the Company and the Parent will file such statements
and reports as may be required by the laws of such jurisdiction to
continue such qualification in effect for so long as may be required in
connection with the distribution of the Offered Securities.
(f) To make generally available to their security holders and
to each Underwriter consolidated earnings statements (which need not be
audited) that satisfy the provisions of Section 11(a) of the Act and
Rule 158 thereunder.
(g) If, at the time that the Registration Statement became
effective, any information was omitted therefrom in
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reliance upon Rule 430A of the 1933 Act Regulations, then, immediately
following the execution of this Agreement, to prepare, and file or
transmit for filing with the Commission in accordance with such Rule
430A and Rule 424(b) of the 1933 Act Regulations, copies of each
amended Prospectus, or, if required by such Rule 430A, a post-effective
amendment to the Registration Statement (including any amended
Prospectus), containing all information so omitted.
(h) To pay or cause to be paid the following: (1) all costs and
expenses incurred in connection with the preparation, printing and
filing of the Registration Statement, any preliminary prospectus, the
Prospectus and any legal investment memorandum and Blue Sky memorandum
as contemplated by Section 4(e), (2) any filing fees incident to any
required review by the National Association of Securities Dealers, Inc.
of the terms of the sale of the Offered Securities, (3) any fees
charged by securities rating agencies for rating any of the Offered
Securities, (4) all costs and expenses incurred in connection with the
preparation, issuance and delivery of the Offered Securities (and any
securities issuable upon conversion, exercise or exchange of any
Offered Securities) (other than transfer taxes), (5) all costs and
expenses incurred in connection with 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, (6) the fees and
expenses incurred in connection with the registration of the Offered
Securities under the 1934 Act and (7) the fees and expenses of the
transfer agent for the Preferred Securities.
(i) If this Agreement is terminated by the Underwriters 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 or the Parent to comply with the terms of
this Agreement, or if for any reason either of the Company or the
Parent shall be unable to perform its obligations herein or therein,
the Company and the Parent will reimburse the several Underwriters for
all out-of-pocket expenses (including the fees and expenses of counsel
retained by the Underwriters) reasonably incurred by the Underwriters
in connection herewith. Neither the Company nor the Parent, however,
will be liable to any of the Underwriters for damages on account of
loss of anticipated profits.
(j) During a period of 60 days from the date of this Agreement,
neither the Company nor the Parent will, without prior written consent
of Xxxxxxx Xxxxx, directly or
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indirectly, sell, offer to sell, contract to sell, grant any option for
the sale of, or otherwise dispose of, any shares of capital stock of
the Company or shares of Series A and Series B TCI Group Common Stock
or securities convertible into or exchangeable for or exercisable for
shares of capital stock of the Company or shares of Series A and Series
B TCI Group Common Stock (collectively, "Convertible Securities"),
except (x) shares of capital stock of the Company or shares of Series A
or Series B TCI Group Common Stock or Convertible Securities (or both)
offered or sold to directors, officers and employees of the Company or
the Parent pursuant to options in existence on the date of this
Agreement or pursuant to employee benefit plans or as executive
compensation, (y) such number of shares of capital stock of the Company
or shares of Series A or Series B TCI Group Common Stock and/or
Convertible Securities as may be required to consummate the
transactions described in Schedule C hereto and (z) an additional
number of shares of capital stock of the Company or shares of Series A
or Series B TCI Group Common Stock or Convertible Securities not to
exceed 3,000,000 in the aggregate.
(k) To use every reasonable effort to effect and maintain the
listing of the Preferred Securities on the Nasdaq National Market and
to file with the Nasdaq National Market all documents and notices
required by the Nasdaq National Market of companies that have
securities quoted on such exchange.
SECTION 5 Representations and Warranties. (a) Each of the
Company and the Parent, jointly and severally, represents and warrants to each
Underwriter as of the date hereof, as of the Closing Date referred to in Section
3 hereof and as of any Date of Delivery as follows:
(1) 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 Securities Exchange Act of 1934, as amended (the
"1934 Act"), and the rules and regulations of the Commission
promulgated thereunder, and any further documents so filed and
incorporated by reference will, when they are filed with the
Commission, conform in all material respects to the requirements of the
1934 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
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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.
(2) Each of the Company and the Parent meets the registrant
requirements and the transaction requirements for use of Form S-3 under
the 1933 Act in connection with the offering of the Offered Securities.
Each of the Registration Statement and any Rule 462(b) Registration
Statement has become effective under the 1933 Act and no stop order
suspending the effectiveness of the Registration Statement or any Rule
462(b) Registration Statement has been issued under the 1933 Act, and
no proceedings for that purpose have been instituted or are pending or,
to the knowledge of the Company or the Parent, are contemplated by the
Commission, and any request on the part of the Commission for
additional information has been complied with.
At the respective times the Registration Statement, any Rule
462(b) Registration Statement and any post-effective amendments thereto
became effective and at the Closing Date (and, if any Option Securities
are purchased, at the Date of Delivery), the Registration Statement,
the Rule 462(b) Registration Statement and any amendments and
supplements thereto complied and will comply in all material respects
with the requirements of the 1933 Act and the 1933 Act Regulations and
did not and 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. Neither the
Prospectus nor any amendments or supplements thereto, at the time of
filing thereof with the Commission, included or will include an untrue
statement of a material fact or omitted or will omit to state a
material fact necessary in order to make the statements therein, in the
light of the circumstances under which they were made, not misleading.
If Rule 434 is used, the Company and the Parent will comply with the
requirements of Rule 434. The representations and warranties in this
subsection shall not apply to statements in or omissions from the
Registration Statement or Prospectus made in reliance upon and in
conformity with information furnished to the Company and the Parent in
writing by any Underwriter expressly for use in the Registration
Statement or Prospectus.
Each preliminary prospectus and the prospectus filed as part of
the Registration Statement as originally filed or as part of any
amendment thereto, or filed pursuant to Rule 424 under the 1933 Act,
complied when so filed in all material
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respects with the 1933 Act Regulations, if applicable, and each
preliminary prospectus and the Prospectus delivered to the Underwriters
for use in connection with this offering was identical to the
electronically transmitted copies thereof filed with the Commission
pursuant to XXXXX, except to the extent permitted by Regulation S-T.
(3) This Agreement has been duly authorized, executed and
delivered.
(4) Each of the Offered Securities and the Series A TCI Group
Common Stock conforms to the description thereof in the Prospectus.
(5) The Preferred Securities have been duly and validly
authorized by the Company and, upon the filing of a Certificate of
Designations for such Preferred Securities with the Delaware Secretary
of State (the "Certificate of Designations") and the issuance and
delivery of such Preferred Securities against payment therefor by the
Underwriters in accordance with this Agreement, such Preferred
Securities will be duly and validly issued and fully paid and
non-assessable; the shares of Series A TCI Group Common Stock initially
issuable upon exchange of such Preferred Securities have been reserved
for issuance upon such exchange; and, when issued in accordance with
the terms of the Certificate of Designations upon exchange of Preferred
Securities or in respect of any redemption or dividend payment thereon,
the shares of Series A TCI Group Common Stock so issued will be duly
authorized, validly issued, fully paid and non-assessable.
(6) The Guarantee has been duly authorized and, when executed
and delivered by the Parent at the Closing Date, will constitute a
valid and legally binding agreement of the Parent 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).
(7) The issuance and sale of the Preferred Securities by the
Company and the Guarantee by the Parent and the fulfillment of the
terms of this Agreement will not result in a breach of any of the terms
or provisions of, or constitute a default under, the certificate of
incorporation or bylaws of either such party, or any indenture,
mortgage, deed of trust or other material agreement or instrument to
which either such party or any of its significant subsidiaries (as such
term is defined in Rule 1.02(v) of Regulations S-X) is now a party or
by which it is bound, or any order of any court or
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governmental agency or authority entered in any proceeding to which
either such party was or is now a party or by which it is bound.
(8) The accountants who certified the financial statements and
supporting schedules included by reference in the Registration
Statement are independent public accountants as required by the 1933
Act and the 1933 Act Regulations.
(9) Except to the extent set forth in the Prospectus, neither
the Company nor the Parent has received any notice of, nor does it have
any actual knowledge of, any failure by it or any of its significant
subsidiaries (as such term is defined in Rule 1.02(v) of Regulation
S-X) 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 or of the Parent and its subsidiaries, in
each case considered as a whole.
(b) Any certificate signed by any officer of the Company or of the
Parent and delivered to the Underwriters or to counsel for the Underwriters
pursuant to the terms of this Agreement shall be deemed a representation and
warranty by the Company or the Parent, as the case may be, to the Underwriters
as to the matters covered thereby.
SECTION 6 Indemnification. Each of the Company and the Parent
agrees, jointly and severally, to indemnify and hold harmless each Underwriter,
and each person, if any, who controls any 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 or the Parent by any Underwriter
expressly for use therein; provided, however, that neither the Company nor the
Parent shall indemnify any Underwriter or any person who controls any 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
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liabilities are based was made in: (i) any preliminary prospectus, if a copy of
the Prospectus (as then amended or supplemented if the Parent 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 or the Parent advised such Underwriter 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 and the Parent to keep the same
current and effective has expired. This indemnity will be in addition to any
liability which the Company or the Parent may otherwise have. All fees and
expenses which are reimbursable pursuant to this Section 6 shall be reimbursed
as they are incurred.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against any Underwriter or any person controlling
such Underwriter in respect of which indemnity may be sought from the Company or
the Parent, such Underwriter or such controlling person shall promptly notify
the Company and the Parent in writing, and the Company and the Parent shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Underwriter and the payment of all expenses. Any omission
so to notify the Company or the Parent shall not, however, relieve the Company
or the Parent from any liability which either such party 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 such
Underwriter's expense or the expense of such controlling person unless (a) the
Company or the Parent has agreed to pay such fees and expenses or (b) the
Company or the Parent shall have failed to assume the defense of such action or
proceeding and employ counsel reasonably satisfactory to such Underwriter in any
such action or proceeding or (c) the named parties to any such action or
proceeding (including any impleaded parties) include both such Underwriter or
such controlling person and either of the Company or the Parent, and such
Underwriter or such controlling person shall have been advised by counsel to
such Underwriter that there may be a conflict of interest between such
Underwriter or such controlling person and either of the Company or the Parent
in the conduct of the defense of such action (in which case, if such Underwriter
or such controlling person notifies the Company and the Parent in writing that
it elects to employ separate counsel at the expense of the Company and the
Parent, neither the
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Company nor the Parent shall 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 neither the Company nor the Parent shall, 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 and the Parent 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). Neither the Company nor the Parent shall 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 and the
Parent agree to indemnify and hold harmless such Underwriter and any such
controlling person from and against any loss or liability by reason of such
settlement or judgment.
Each Underwriter severally agrees to indemnify and hold harmless each
of the Company and the Parent, including its directors and each of its officers,
and each person, if any, who controls the Company or the Parent 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 and the Parent to
such 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 the Parent or the Parent's directors or officers or any such
controlling person, in respect of which indemnity may be sought against an
Underwriter, such Underwriter shall have the rights and duties given to the
Company and the Parent, and the Company or the Parent or the Parent's directors
or officers or such controlling person shall have the rights and duties given to
such Underwriter by the preceding paragraph.
If the indemnification provided for in this Section 6 is unavailable to
an indemnified party under the first or third paragraph hereof in respect of any
losses, claims, damages or liabilities referred to therein (other than by reason
of such indemnified party's failure to comply with the first sentence of the
second paragraph of this Section 6), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
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benefits received by the Company and the Parent 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 or Parent on the one hand and of 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 or the Parent 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 and the Parent bear to the total underwriting discounts received by the
Underwriters in respect thereof. The relative fault of the Company or the Parent
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 the Parent or by the
Underwriters 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.
Each of the Company and the Parent and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 6 were
determined by pro rata allocation or by any other method of allocation which
does not take account of the equitable considerations referred to in the
immediately preceding paragraph. Notwithstanding the provisions of this Section
6, no Underwriter shall be required to contribute any amount in excess of the
amount by which the total price at which the Offered Securities were offered to
the public exceeds the amount of any damages which such Underwriter has
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 and the Parent contained
in this Agreement shall remain operative and in full force and effect regardless
of (a) any investigation made
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by or on behalf of any Underwriter, by or on behalf of any person controlling
such Underwriter or by or on behalf of the Company or the Parent, (b) acceptance
of any of the Offered Securities and payment therefor or (c) any termination of
this Agreement.
SECTION 7 Conditions of the Obligations of the Underwriters.
The obligations of the several Underwriters hereunder are subject to
the following conditions:
(a) At the Closing Date no stop order suspending the
effectiveness of the Registration Statement shall have been issued
under the 1933 Act or proceedings therefor initiated or threatened by
the Commission; and the Underwriters shall have received a certificate,
dated the Closing Date and signed by (i) the Chairman of the Board, the
President, an Executive Vice President or the Senior Vice
President-Finance and Treasurer of the Company and (ii) the Chairman of
the Board, the President, an Executive Vice President or the Senior
Vice President-Finance and Treasurer of the Parent (each of whom may,
as to threatened proceedings, rely upon the best of his information and
belief), to such effect and to the effect set forth in clause (e) of
this Section 7. If the Company and the Parent have elected to rely upon
Rule 430A of the 1933 Act Regulations, the price of the Offered
Securities and any price-related information previously omitted from
the effective Registration Statement pursuant to such Rule 430A shall
have been transmitted to the Commission for filing pursuant to Rule
424(b) of the 1933 Act Regulations within the prescribed time period,
and prior to the Closing Date the Parent shall have provided evidence
satisfactory to the Underwriters of such timely filing, or a
post-effective amendment providing such information shall have been
promptly filed and declared effective in accordance with the
requirements of Rule 430A of the 1933 Act Regulations.
(b) At the Closing Date the Underwriters shall have received:
(1) The opinions, dated as of the Closing Date, and reasonably
satisfactory to counsel for the Underwriters, from Messrs. Xxxx, Raywid
& Xxxxxxxxx or such other special communications counsel for the Parent
and the Company as may be reasonably satisfactory to the Underwriters
and from the General Counsel of the Company and the Parent to the
following effect and covering such additional matters as the
Underwriters may reasonably request:
(i) the Parent and each of its significant
subsidiaries (including the Company) is a corporation duly
organized, validly existing and in good standing
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under the laws of the jurisdiction of its incorporation with
the corporate power and authority to carry on its business as
described in the Prospectus (as amended or supplemented, if
applicable); and each of the Company and the Parent 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 Parent and each of its significant
subsidiaries (including the Company) 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 or the Parent and its
subsidiaries, in each case taken as a whole, as the case may
be;
(iii) All corporate proceedings legally required in
connection with the authorization and issuance of, and the sale
of, the Preferred Securities by the Company in accordance with
the terms of this Agreement have been taken;
(iv) All corporate proceedings legally required in
connection with the authorization and issuance of, and the sale
of, the Guarantee by the Parent in accordance with the terms of
this Agreement and the reservation for issuance of the Series A
TCI Group Common Stock by the Parent in accordance with the
Guarantee have been taken;
(v) To the best knowledge of such counsel, there is no
legal or governmental proceeding pending or threatened against
the Company or the Parent 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;
(vi) 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;
(vii) The execution and delivery of this 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
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constitute a default under, the charter or the by-laws of the
Company or the Parent, as the case may be, 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
the Parent 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 the Parent, 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 laws of any jurisdiction;
(viii) To the best knowledge of such counsel, neither
the Registration Statement nor the Prospectus, as amended or
supplemented, if applicable (expect 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, 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.
(2) from Messrs. Xxxxxxx & Xxxxxx, special counsel to the
Company and the Parent, to the following effect and covering such
additional matters as the Underwriters may reasonably request:
(i) The execution and delivery of this Agreement, the
issuance of the Offered Securities, the reservation for
issuance of shares of Series A TCI Group Common Stock in
accordance with the Guarantee and the fulfillment of the terms
of this Agreement, the Certificate of Designations and the
Guarantee do not or will not, as appropriate, 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 the Parent or any of the Parent's
significant subsidiaries is a party or by which it is bound;
and
(ii) neither the Parent nor the Company is an
"investment company" within the meaning of the Investment
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Company Act of 1940, as amended, and neither such party is
subject to regulation under such Act.
and (3) from Xxxxx & Xxxxx, L.L.P., special counsel to the Company and
the Parent, to the following effect and covering such additional
matters as the Underwriters may reasonably request:
(i) This Agreement has been duly authorized, executed
and delivered by the Company;
(ii) This Agreement and the Guarantee have been duly
authorized, executed and delivered by the Parent; and the
Guarantee is a legal, valid and binding agreement of the Parent
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;
(iii) The Preferred Securities have been duly and
validly authorized by the Company and, upon the filing of a
Certificate of Designations for such Preferred Securities with
the Delaware Secretary of State and the issuance and delivery
of such Preferred Securities against payment therefor by the
Underwriters in accordance with this Agreement, such Preferred
Securities will be duly and validly issued and fully paid and
non-assessable;
(iv) The Series A TCI Group Common Stock issuable in
exchange for, or in respect of any dividend or redemption
payment on, the Preferred Securities in accordance with the
terms of the Certificate of Designations has been duly and
validly authorized; and, when such shares of Series A TCI Group
Common Stock are issued and delivered in exchange for, or in
respect of any dividend or redemption payment on, the Preferred
Securities in accordance with the Certificate of Designations,
will be duly and validly issued and fully paid and
non-assessable;
(v) The Registration Statement is effective under the
1933 Act and, to the best of such counsel's knowledge and
information, no stop order suspending the effectiveness of the
Registration Statement has been
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issued under the 1933 Act or proceedings therefor initiated or
threatened by the Commission;
(vi) Each of the Preferred Securities, the Guarantee
and the Series A TCI Group Common Stock conforms in all
material respects as to legal matters to the descriptions
thereof in the Prospectus (as amended or supplemented, if
applicable);
(vii) The statements set forth in the Prospectus under
the caption "Certain Federal Income Tax Considerations,"
insofar as they purport to describe the provisions of law
referred to therein, are accurate and complete in all material
respects.
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 Parent or 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
Parent and 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 Parent and 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
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21
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 or the Parent, 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 Parent) or New York (in the case of Xxxxx & Xxxxx, L.L.P.), on
the opinions of local counsel retained by them or the Company or the
Parent, provided that such counsel are satisfactory to the Underwriters
and counsel retained by the Underwriters.
(c) The Underwriters shall have received on the Closing Date
from Messrs. Xxxxx & Wood, counsel retained by 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 the financial statements and schedules and any other
financial and statistical data contained or incorporated by reference
therein, as to which no opinion need be expressed) comply as to form in
all material respects with the Act.
(d) On the Closing Date, the Underwriters shall have received
from each of KPMG Peat Marwick LLP and Price Waterhouse LLP letters,
dated as of the Closing Date, in form and substance reasonably
satisfactory to the Underwriters.
(e) The representations and warranties of the Company and the
Parent in this Agreement shall be true and correct on and as of the
Closing Date; each of the Company and the Parent 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 change in the condition
(financial or otherwise), business, prospects or results of operations
of the Company and its subsidiaries or of the Parent and its
subsidiaries, in each case considered as a whole.
(f) Subsequent to the date of this Agreement, there shall not
have occurred any change, or any development
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involving a prospective change, in or affecting particularly the
business, prospects or financial affairs of the Company and its
subsidiaries or of the Parent and its subsidiaries, in each case
considered as a whole which, in the reasonable judgment of the
Underwriters, 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.
(g) At the Closing Date the Preferred Securities and the Series
A TCI Group Common Stock into which such Preferred Securities are
exchangeable shall have been approved for quotation on the Nasdaq
National Market and the Company and the Parent shall have filed all
notices and documents required by the Nasdaq National Market of
companies that have securities quoted on such exchange.
(h) In the event the Underwriters exercise the option granted
in Section 2(b) hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company and the
Parent contained herein and the statements in any certificates
furnished by the Parent hereunder shall be true and correct as of the
Date of Delivery, and the Underwriters shall have received:
(1) A certificate, dated the Date of Delivery, signed
by (i) the Chairman of the Board, the President, an Executive
Vice President or the Senior Vice President-Finance and
Treasurer of the Company and (ii) the Chairman of the Board,
the President, an Executive Vice President or the Senior Vice
President-Finance and Treasurer of the Parent, confirming that
the certificate delivered at the Closing Date pursuant to
Section 7(a) hereof remains true as of the Date of Delivery.
(2) The favorable opinions of Cole Raywid & Xxxxxxxxx,
special communications counsel to the Parent and the Company,
the General Counsel for the Parent, Xxxxxxx & Xxxxxx and Xxxxx
& Xxxxx, L.L.P., in form and substance satisfactory to counsel
for the Underwriters, dated the Date of Delivery, relating to
the Option Securities and otherwise to the same effect as the
opinions required by Section 7(b).
(3) The favorable opinion of Xxxxx & Xxxx, counsel for
the Underwriters, dated the Date of Delivery, relating to the
Option Securities and otherwise to the same effect as the
opinion required by Section 7(c).
(4) Letters from each of KPMG Peat Marwick LLP and
Price Waterhouse LLP, dated the Date of Delivery,
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substantially the same in scope and substance as the letter
furnished to the Underwriters pursuant to Section 7(d).
SECTION 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 the Underwriters,
without liability on the part of the Underwriters to the Company or the Parent,
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 or the Parent 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.
SECTION 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 non-defaulting Underwriters 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
non-defaulting Underwriters and upon the terms herein set forth; if, however,
the non-defaulting Underwriters have not completed such arrangements within such
24-hour period, then:
(a) if the principal amount of Defaulted Securities does not
exceed 10% of the aggregate principal amount of Offered Securities, the
non-defaulting Underwriters shall be obligated to purchase the full
amount thereof in the proportions that their respective underwriting
obligations hereunder bear to the underwriting obligations of all
non-defaulting Underwriters, or
(b) if the principal amount of Defaulted Securities exceeds 10%
of the aggregate principal amount of Offered Securities, the Company
shall be entitled for an additional 24-hour period to find one or more
substitute underwriters satisfactory to the non-defaulting Underwriters
in their reasonable discretion to purchase such Defaulted Securities.
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In the event of any such default either the non-defaulting Underwriters
or the Trust and 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 non-defaulting
Underwriters 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.
SECTION 10 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if mailed or
transmitted by any standard form of telecommunication. Notices to the
Underwriters shall be directed to Xxxxxxx Xxxxx & Co., North Tower, World
Financial Center, New York, New York 10281-1305, attention __________; and
notices to the Company shall be directed to it at its office at Terrace Tower
II, 0000 XXX Xxxxxxx, Xxxxxxxxx, Xxxxxxxx 00000-0000, attention: Xxxxx X.
Xxxxxx, Executive Vice President (Principal Financial Officer).
SECTION 11 Parties. This Agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and the Parent and their respective
successors and legal representatives. Nothing expressed or mentioned in this
Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriters, the Company and the Parent and their
respective successors and legal representatives and the controlling persons and
officers and directors referred to in Section 6 hereof and their respective
successors, heirs and legal representatives, any legal or equitable right,
remedy or claim under or in respect of this Agreement or any provision herein
contained. This Agreement and all conditions and provisions hereof are intended
to be for the sole and exclusive benefit of the Underwriters, the Company and
the Parent and their respective successors and legal representatives and said
controlling persons, officers and directors and their respective successors,
heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Offered Securities from any Underwriter shall be
deemed to be a successor by reason merely of such purchase.
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SECTION 12 Governing Law and Time. This Agreement shall be governed by
and construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in said State. Specified times of day refer
to New York City time.
If the foregoing is in accordance with your understanding of our
agreement, please sign and return to the Company and the Parent a counterpart
hereof, whereupon this instrument, along with all counterparts, will become a
binding agreement between the Underwriters and the Company and the Parent in
accordance with its terms.
Very truly yours,
TCI COMMUNICATIONS, INC.
By: _____________________________
TELE-COMMUNICATIONS, INC.
By: _____________________________
CONFIRMED AND ACCEPTED,
as of the date first
above written:
XXXXXXX XXXXX & CO.
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated
CS FIRST BOSTON CORPORATION
XXXXXX BROTHERS INC.
XXXXXX XXXXXXX & CO. INCORPORATED
BY: XXXXXXX LYNCH, PIERCE, XXXXXX & XXXXX
INCORPORATED
By: _________________________________________
Authorized Signatory
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SCHEDULE A
Number of
Initial
Name of Underwriter Securities
------------------- ----------
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated . . . . . . . . . . . . . . . . . .
CS First Boston Corporation . . . . . . . . . . . . . . . . .
Xxxxxx Brothers Inc. . . . . . . . . . . . . . . . . . . . .
Xxxxxx Xxxxxxx & Co. Incorporated . . . . . . . . . . . . . .
---------
Total . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2,000,000
=========
Sch A - 1
27
SCHEDULE B
TCI COMMUNICATIONS, INC.
(a Delaware Corporation)
2,000,000 Shares
Cumulative Exchangeable Preferred Stock, Series A
1. The initial public offering price per share for the Offered
Securities, determined as provided in said Section 2, shall be $____.
2. The purchase price per share for the Offered Securities to be paid
by the several Underwriters shall be $____, being an amount equal to the
initial public offering price set forth above less $____ per share; provided
that the purchase price per share for any Option Securities purchased upon
the exercise of the over-allotment option described in Section 2(b) shall be
(i) reduced by an amount per share equal to any dividends or distributions
declared by the Company and payable on the Initial Securities but not
payable on the Option Securities and increased by the amount of accrued but
unpaid dividends on the Option Securities from the original date of issue of
the Initial Securities and (ii) increased by the amount of accrued and
unpaid dividends on the Option Securities from the original date of issue of
the Option Securities.
Sch B - 1
28
SCHEDULE C
[LIST OF PENDING TRANSACTIONS TO BE PROVIDED BY COMPANY]
Sch C - 1
