<PAGE> 1
As filed with the Securities and Exchange Commission on March 15, 1994.
Registration Statement No. 33-64604
================================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
POST-EFFECTIVE AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
JONES INTERCABLE, INC.
(Exact name of Registrant as specified in its charter)
Colorado 84-0613514
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
9697 East Mineral Avenue
Englewood, Colorado 80112
(303) 792-3111
(Address, including zip code, and telephone number, including
area code, of Registrant's principal executive office)
Elizabeth M. Steele
Vice President/General Counsel
9697 East Mineral Avenue
Englewood, Colorado 80112
(303) 792-3111
(Name, address, including zip code, and
telephone number, including area code, of agent for service)
Copies to:
Robert S. Zinn, Esq. Patricia Peterson, Esq.
Counsel Davis, Graham & Stubbs
Jones Intercable, Inc. 370 Seventeenth Street
9697 East Mineral Avenue Suite 4700
Englewood, Colorado 80112 Denver, Colorado 80202
(303) 792-3111 (303) 892-9400
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE
PUBLIC: From time to time after the effective date of this Registration
Statement.
If the only securities being registered on this Form are
being offered pursuant to dividend or interest reinvestment plans, please check
the following box. / /
If any of the securities being registered on this Form are
to be offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. /X/
================================================================================
<PAGE> 2
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 16. Exhibits
The following exhibits, which are numbered in accordance with Item
601 of Regulation S-K, are filed herewith or, as noted, incorporated by
reference herein:
1 Form of Underwriting Agreement Basic Provisions, with form of
Terms Agreement attached.
4.1(a) Indenture, dated as of July 15, 1992, between the Registrant and
First Trust National Association. (1)
4.1(b) Form of Senior Indenture between the Registrant and U.S. Trust
Company of California, N.A., as Trustee. (2)
4.1(c) Form of Subordinated Indenture between the Registrant and Bank
of America National Trust and Savings Association, as Trustee.
(2)
5 Opinion as to the legality of the securities being registered.
_____________________
(1) Incorporated by reference from Registration Statement No. 33-47030 on
Form S-3, filed on April 8, 1992, and Amendment Nos. 1 and 2 thereof,
filed on April 24, 1992 and June 4, 1992, respectively, and Post-
Effective Amendment No. 1 thereof, filed on July 15, 1992.
(2) Incorporated by reference from Registration Statement No. 33-47030 on
Form S-3, filed on April 8, 1992, and Amendment Nos. 1 and 2 thereof,
filed on April 24, 1992 and June 4, 1992, respectively.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Post-Effective Amendment No. 1 to the Registration Statement to be signed on
its behalf by the undersigned, thereunto authorized, in the City of Englewood
and the State of Colorado on the 14th day of March, 1994.
JONES INTERCABLE, INC.
By: */s/ GLENN R. JONES
------------------------------------
(Glenn R. Jones)
Chairman and Chief Executive Officer
Pursuant to the requirements of the Securities Act of 1933, this
Post-Effective Amendment No. 1 to the Registration Statement has been signed by
the following persons in the capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
<S> <C> <C>
*/s/ GLENN R. JONES Chairman of the Board March 14, 1994
------------------------------------- and Chief Executive
(Glenn R. Jones) Officer (Principal
Executive Officer)
/s/ JAMES B. O'BRIEN President and Director March 14, 1994
-------------------------------------
(James B. O'Brien)
/s/ KEVIN P. COYLE Group Vice March 14, 1994
------------------------------------- President/Finance
(Kevin P. Coyle) (Principal Financial
Officer)
</TABLE>
<PAGE> 4
<TABLE>
<S> <C> <C>
/s/ MICHAEL J. BARTOLEMENTI Controller (Principal March 14, 1994
------------------------------------- Accounting Officer)
(Michael J. Bartolementi)
*/s/ JAMES J. KREJCI Group Vice President March 14, 1994
------------------------------------- and Director
(James J. Krejci)
/s/ RAYMOND L. VIGIL Group Vice March 14, 1994
------------------------------------- President/Human
(Raymond L. Vigil) Resources and
Director
/s/ PATRICK J. LOMBARDI Director March 14, 1994
-------------------------------------
(Patrick J. Lombardi)
Director
-------------------------------------
(George J. Feltovich)
Director
-------------------------------------
(Howard O. Thrall)
*By: /s/ ELIZABETH M. STEELE
--------------------------------
(Elizabeth M. Steele)
Attorney-in-fact
</TABLE>
<PAGE> 5
EXHIBIT INDEX
<TABLE>
<CAPTION>
EXHIBIT NUMBER DOCUMENT DESCRIPTION
- - -------------- --------------------
<S> <C>
1 Form of Underwriting Agreement Basic Provisions, with
form of Terms Agreement attached.
5 Opinion as to the legality of the securities being registered.
</TABLE>
<PAGE> 1
JONES INTERCABLE, INC.
DEBT SECURITIES
UNDERWRITING AGREEMENT BASIC PROVISIONS
______________, 1994
To the Representative or Representatives
named in the Terms Agreement referred to
below
Jones Intercable, Inc., a Colorado corporation (the
"Company"), may issue and sell from time to time its debt securities consisting
of senior debt securities ("Senior Debt Securities"), senior subordinated debt
securities ("Senior Subordinated Debt Securities") and subordinated debt
securities ("Subordinated Debt Securities"; the Senior Debt Securities, the
Senior Subordinated Debt Securities and the Subordinated Debt Securities being
collectively referred to as the "Securities") registered under the registration
statement referred to in Section 2(a) hereof. Such Securities may have varying
designations, denominations, interest rates and payment dates, maturities,
redemption provisions and selling prices. The Securities may be convertible,
as described in the Indentures (as defined below), into shares of the Company's
Class A Common Stock, $.01 par value (the "Class A Common Stock"). The basic
provisions set forth herein are intended to be incorporated by reference in a
terms agreement of the type referred to in Section 1 hereof relating to the
designation (including whether Senior Debt Securities and whether, and on what
terms, such Securities are convertible) and series of Securities to be issued
and sold by the company pursuant thereto (the "Offered Securities") to the
several underwriters named therein (the "Underwriters"). The Senior Debt
Securities will be issued under an indenture (the "Senior Debt Securities
Indenture"), to be entered into between the Company and U.S. Trust Company of
California, N.A., as trustee (the "Senior Debt Securities Indenture Trustee");
the Senior Subordinated Debt Securities will be issued under an indenture (the
"Senior Subordinated Debt Securities Indenture") entered into between the
Company and First Trust National Association, as trustee (the "Senior
Subordinated Debt Securities Indenture Trustee"); the Subordinated Debt
Securities will be issued under an indenture (the "Subordinated Debt Securities
Indenture") to be entered into between the Company and Bank of America National
Trust and Savings Association, as trustee (the "Subordinated Debt Securities
Indenture Trustee")
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(the Senior Debt Securities Indenture, the Senior Subordinated Debt Securities
Indenture and the Subordinated Debt Securities Indenture pursuant to which the
Offered Securities are issued are individually referred to as an "Indenture";
the Senior Debt Securities Indenture Trustee, the Senior Subordinated Debt
Securities Indenture Trustee and the Subordinated Debt Securities Indenture
Trustee are individually referred to as a "Trustee" and collectively referred
to as the "Trustees"). The Terms Agreement relating to the Offered Securities
(the "Terms Agreement"), together with the provisions hereof incorporated
therein by reference (which provisions shall not become effective until so
incorporated by reference), is herein referred to as this "Agreement." If the
Underwriters consist only of the firm or firms referred to in the Terms
Agreement as Representative or Representatives, then the terms "Underwriters"
and "Representatives," as used herein, shall each be deemed to refer to such
firm or firms.
1. Terms Agreement. The obligation of the Underwriters
to purchase, and the Company to sell, the Offered Securities is evidenced by
the Terms Agreement delivered at the time the Company determines to sell the
Offered Securities. The Terms Agreement specifies the firm or firms which will
be Underwriters, the principal amount of the Offered Securities to be purchased
by each Underwriter, the purchase price to be paid by the Underwriters for the
Offered Securities, the public offering price, if any, of the Offered
Securities, whether, and on what terms, the Offered Securities are convertible
into shares of Class A Common Stock, whether the Underwriters are authorized to
solicit institutional investors to purchase Offered Securities pursuant to
Delayed Delivery Contracts (as hereinafter defined), certain terms thereof and
the Underwriters' compensation therefor and any terms of the Offered Securities
not otherwise specified in the applicable Indenture (including, but not limited
to, designations, denominations, interest rates and payment dates, maturity,
redemption provisions and sinking fund requirements) and such other terms that
may be decided between the Company and the Underwriters as specified in the
Terms Agreement. The Terms Agreement specifies any details of the terms of the
offering that should be reflected in a post-effective amendment to the
Registration Statement or the Prospectus Supplement (each as hereinafter
defined).
2. Representations and Warranties of the Company. The
Company represents and warrants to and agrees with each Underwriter that:
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(a) A registration statement on Form S-3,
including a prospectus, with respect to the Securities and the shares
of Class A Common Stock that may be issuable upon conversion of any
convertible Securities, (i) has been prepared by the Company in
conformity with the requirements of the Securities Act of 1933, as
amended (the "Act") and the rules and regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the
"Commission") thereunder, (ii) has been filed with the Commission and
(iii) has become effective. Such registration statement and
prospectus may have been amended or supplemented from time to time
prior to the date of this Agreement; any such amendment to the
Registration Statement was so prepared and filed and any such
amendment has become effective. A prospectus supplement (the
"Prospectus Supplement"), including a prospectus, relating to the
Offered Securities has been so prepared. The Prospectus Supplement,
and if not previously filed, such prospectus will be filed pursuant to
Rule 424 under the Act. Copies of such registration statement and
prospectus, any such amendment or supplement, the Prospectus
Supplement and all documents incorporated by reference therein which
were filed with the Commission on or prior to the date of the Terms
Agreement (including one fully executed copy of the registration
statement and of each amendment thereto for counsel for the
Underwriters) have been delivered to you. Such registration statement
and prospectus, as amended or supplemented to the date of the Terms
Agreement and as supplemented by the Prospectus Supplement are herein
referred to as the "Registration Statement" and the "Prospectus,"
respectively. Any reference herein to the Registration Statement or
the Prospectus shall be deemed to refer to and include the documents
incorporated by reference therein which were filed with the Commission
on or prior to the date of the Terms Agreement and any reference to
the terms "amend," "amendment" or "supplement" with respect to the
Registration Statement or the Prospectus shall be deemed to refer to
and include, except with respect to Paragraph 5(d) hereof, the filing
of any document with the Commission deemed to be incorporated by
reference therein after the date of the Terms Agreement and on or
prior to the Closing Date.
(b) The Registration Statement, at the time it
became effective, any post-effective amendment thereto, at the time it
became effective, the Registration Statement and the Prospectus, as of
the date of the Terms Agreement and at the Closing Date (as
hereinafter defined),
<PAGE> 4
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and any amendment or supplement thereto, conformed or will conform in
all material respects to the requirements of the Act, the Trust
Indenture Act of 1939, as amended (the "Trust Indenture Act") and the
Rules and Regulations; and no such document included or will include
an untrue statement of a material fact or omitted or will omit to
state a material fact required to be stated therein or necessary to
make the statements therein not misleading; provided that the Company
makes no representation or warranty as to information contained in or
omitted from the Registration Statement of the Prospectus in reliance
upon and in conformity with written information furnished to the
Company by or on behalf of any Underwriter specifically for inclusion
therein or information contained in the Statements of Eligibility and
Qualification on Form T-1 of the Trustees other than information
furnished to the Trustees by the Company specifically for inclusion
therein.
(c) The documents incorporated by reference in
the Registration Statement or the Prospectus, when they became
effective or were filed with the Commission, as the case may be, under
the Securities Exchange Act of 1934 (the "Exchange Act"), conformed,
and any documents so filed and incorporated by reference after the
date of the Terms Agreement and on or prior to the Closing Date will,
when they are filed with the Commission, conform, in all material
respects to the requirements of the Act and the Exchange Act, as
applicable, and the rules and regulations of the Commission
thereunder.
(d) Neither the Company nor any of its
subsidiaries (as defined in Paragraph 12) is in violation of its
corporate charter or by-laws, in the case of the Company and its
corporate subsidiaries, or the applicable limited partnership
agreement, in the case of the Company's affiliated partnerships, or in
default under any agreement, indenture or instrument, the effect of
which violation or default would constitute a Material Adverse Effect;
neither the issuance or sale of the Offered Securities or the issuance
of the shares of Class A Common Stock upon conversion of any
convertible Offered Securities nor the consummation of any other of
the transactions contemplated herein or in the Delayed Delivery
Contracts nor fulfillment of the terms hereof or thereof or of the
Indenture will conflict with, or result in the creation or imposition
of any lien, charge or encumbrance, which in either case would have a
Material Adverse Effect upon any of the assets of the Company or any
of its subsidiaries pursuant to the terms of, or constitute a default
under, any
<PAGE> 5
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agreement, indenture or instrument, or result in a violation of the
corporate charter or by-laws of the Company, in the case of the
Company and its corporate subsidiaries, or the applicable limited
partnership agreement, in the case of the Company's affiliated
partnerships, or any order, rule or regulation of any court or
governmental agency having jurisdiction over the Company, any of its
subsidiaries or their property, the effect of which default or
violation would constitute a Material Adverse Effect; and except as
required by the Act, the Exchange Act, the Trust Indenture Act, and
applicable state securities laws, no consent, authorization or order
of, or filing or registration with, any court or governmental agency
is required for the execution, delivery and performance of this
Agreement.
(e) Except as described in or contemplated by the
Registration Statement and the Prospectus, subsequent to the
respective dates as of which information is given in the Registration
Statement and the Prospectus, there has not been any Material Adverse
Effect in, or any adverse development which materially affects, the
business, franchises, properties, financial condition, results of
operations or prospects of the Company and its subsidiaries and its
interests in its affiliated partnerships taken as a whole.
(f) The Indenture relating to the Offered
Securities has been validly authorized and, when executed by the
proper officers of the Company (assuming the due execution and
delivery thereof by the Trustee) and delivered by the Company, will
constitute the legally binding obligation of the Company, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles; the Offered Securities have
been validly authorized, and, upon due execution, authentication and
delivery against payment therefore in accordance with the provisions
of this Agreement, the Indenture (and, in the case of any Contract
Securities, as contemplated by the Delayed Delivery Contracts with
respect thereto) will be validly issued and outstanding, and will
constitute legally binding obligations of the Company, subject to
bankruptcy, insolvency, reorganization and other laws of general
applicability relating to or affecting the enforcement of creditors'
rights and to general equity principles, entitled to the benefits of
the Indenture; and the Offered Securities, and any shares of Class A
Common Stock issuable upon conversion of any Offered Securities, and
<PAGE> 6
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the Indenture will conform to the descriptions thereof contained in
the Registration Statement and the Prospectus.
(g) Any convertible Offered Securities are
convertible into shares of Class A Common Stock in accordance with the
terms of the Indenture relating to such Offered Securities; the
appropriate number of shares of Class A Common Stock initially
issuable upon conversion of any such Offered Securities in accordance
with the terms of the Indenture have been duly authorized and reserved
for issuance, and will, when issued in accordance with the terms of
the Indenture, be validly issued, fully paid and non-assessable with
no personal liability attaching to the ownership thereof; and none of
the shares of Class A Common Stock into which any such Offered
Securities will be convertible will be subject to any preemptive
right, or any lien, charge or encumbrance or any other claim of any
third party.
(h) Each of the Company and its subsidiaries has
been duly incorporated, and each of the Company's affiliated
partnerships has been duly formed, and are validly existing and in
good standing as corporations, in the case of the Company and its
corporate subsidiaries, or as limited partnerships, in the case of its
affiliated partnerships, under the laws of their respective
jurisdictions of incorporation, or formation, and are duly qualified
to do business and in good standing as a foreign corporation or
partnership in each jurisdiction in which their respective ownership
or lease of property or the conduct of their respective business
requires such qualification (except where the failure so to qualify
would not have a Material Adverse Effect), and has all corporate or
partnership power and authority necessary to own or hold their
respective properties and to conduct the business in which they are
engaged. Except as described in the Registration Statement and the
Prospectus, all of the outstanding shares of each of the Company's
corporate subsidiaries are owned by the Company directly, or
indirectly through wholly-owned subsidiaries, free and clear of any
liens, claims, equities or encumbrances, except liens, claims,
equities or encumbrances arising in connection with bank indebtedness
incurred in the ordinary course of business, have been duly authorized
and are validly issued and outstanding, full paid and non-assessable.
(i) Except as set forth in or contemplated by the
Registration Statement or the Prospectus, there is no material
litigation or
<PAGE> 7
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governmental proceeding pending or, to the knowledge of the Company,
threatened against the Company or any of its subsidiaries which, if
determined adversely to the Company or any of its corporate
subsidiaries or affiliated partnerships, would result in any Material
Adverse Effect or which is required to be disclosed in the
Registration Statement and the Prospectus.
(j) The financial statements and schedules and
information of the Company incorporated by reference in the
Registration Statement and Prospectus fairly present the financial
condition and results of operations of the entities purported to be
shown thereby, at the dates and for the periods indicated, and have
been prepared in conformity with generally accepted accounting
principles applied on a consistent basis throughout the periods
involved. Arthur Andersen & Co., who have examined such financial
statements, as set forth in their reports incorporated by reference in
the Registration Statement and the Prospectus, are independent public
accountants within the meaning of the Act and the Rules and
Regulations.
(k) There are no contracts or other documents
which are required to be filed as exhibits to the Registration
Statement by the Act or by the Rules and Regulations which have not
been filed as exhibits to the Registration Statement.
(l) The Company and each of its subsidiaries own
or possess adequate licenses or other rights to use all patents,
trademarks, service marks, trade names, copyrights and know-how
necessary to conduct the business now or proposed to be operated by
them as described in the Prospectus, and, except as described in the
Prospectus, neither the Company nor any of its subsidiaries has
received any notice of infringement of or conflict with (or know of
any such infringement of or conflict with) asserted rights of others
with respect to any patents, trademarks, service marks, trade names,
copyrights or know-how which is likely to be sustained and, if such
infringement or conflict were sustained, would result in any Material
Adverse Effect.
(m) The Company and its subsidiaries have filed
all necessary federal, state and foreign income and franchise tax
returns and have paid all taxes shown as due thereon; and there is no
tax deficiency
<PAGE> 8
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that has been asserted against the Company or any of its subsidiaries
that would result in any Material Adverse Effect.
(n) The Company and its subsidiaries have good
and marketable title to all properties and assets described in the
Prospectus as owned by them free and clear of all liens, charges,
encumbrances, or restrictions, except, with respect to the Company and
its corporate subsidiaries, as set forth in the Prospectus and, with
respect to the Company's affiliated partnerships, liens, charges,
encumbrances, and restrictions arising in connection with bank debt
incurred in the ordinary course of business; to the best of the
Company's knowledge all of the material leases, licenses and franchise
agreements under which the Company and its subsidiaries hold or use
tangible or intangible properties or assets as lessee, licensee or
franchisee are in full force and effect and no material claim has been
asserted by anyone adverse to their rights as lessee, licensee or
franchisee under any of such leases, licenses or franchise agreements,
or affecting or questioning their right to the continued possession or
use of the leased, licensed or franchised tangible or intangible
property or assets under any such lease, license or franchise
agreement which claim is likely to be sustained and, if sustained,
would have a Material Adverse Effect.
(o) The Company maintains a system of internal
accounting controls sufficient to provide reasonable assurances that
(i) transactions are executed in accordance with management's general
or specific authorizations, (ii) transactions are recorded as
necessary to permit preparation of financial statements in conformity
with generally accepted accounting principles and to maintain
accountability for assets, (iii) access to assets is permitted only in
accordance with management's general or specific authorization, and
(iv) the recorded accountability for assets is compared with existing
assets at reasonable intervals and appropriate action is taken with
respect to any difference.
(p) Neither the Company nor any of its
subsidiaries is an "investment company" or a company "controlled" by
an "investment company" within the meaning of the Investment Company
Act of 1940, as amended (the "40 Act").
(q) (i) The property, assets and operations of
the Company and its subsidiaries comply in all material respects with
all
<PAGE> 9
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applicable Environmental Laws (as defined below) (except to the extent
that failure to comply with such Environmental Laws would not have a
Material Adverse Effect), (ii) to the knowledge of the Company after
reasonable inquiry, none of the property, assets or operations of the
Company or its subsidiaries is the subject of any federal, state or
local investigation evaluating whether any remedial action is needed
to respond to a release of any Hazardous Materials (as defined below)
into the environment or is in contravention of any federal, state or
local law, order or regulation that would have a Material Adverse
Effect, (iii) neither the Company nor any of its subsidiaries has
received any notice or claim, nor are there pending, threatened or
reasonably anticipated lawsuits against them, with respect to
violations of an Environmental Law or in connection with any release
of any Hazardous Materials into the environment that would result in a
Material Adverse Effect, and (iv) neither the Company nor any of its
subsidiaries has any material contingent liability (material to the
Company and its subsidiaries and its interests in its affiliated
partnerships taken as a whole) in connection with any release of any
Hazardous Materials into the environment (as used herein,
"Environmental Laws" means any federal, state, territorial, provincial
or local law, common law doctrine, rule, order, decree, judgment,
injunction, license, permit or regulation relating to environmental
matters, and "Hazardous Materials" means those substances that are
regulated by or form the basis of liability under any Environmental
Laws).
(r) Neither the Company nor any of the
subsidiaries is involved in any labor dispute nor, to the best
knowledge of the Company, is any dispute imminent, other than routine
disciplinary and grievance matters.
3. Purchase, Sale and Delivery of Securities. The
Offered Securities to be purchased by the Underwriters will be delivered by the
Company to you for the accounts of the several Underwriters at the office
specified in the Terms Agreement against payment of the purchase price therefor
by certified or official bank check or checks in New York Clearing House funds
(or as otherwise specified in the Terms Agreement) payable to the order of the
Company on the date and at the times specified in the Terms Agreement, or at
such other time not later than eight full business days thereafter as you and
the Company determine, such time being herein referred to as the "Closing
Date." The Offered Securities will be prepared in definitive form and in such
authorized
<PAGE> 10
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denominations and registered in such names as you may require upon at least two
business days' prior notice to the Company and will be made available for
checking and packaging at the office at which they are to be delivered on the
Closing Date (or such other office as may be specified for that purpose in the
Terms Agreement) at least one business day prior to the Closing Date.
It is understood that you, acting individually and not in a
representative capacity, may (but shall not be obligated to) make payment to
the Company on behalf of any other Underwriter for the Offered Securities to be
purchased by such Underwriter. Any such payment by you shall not relieve any
such Underwriter of any of its obligations hereunder.
The Company will pay you on the Closing Date for the accounts
of the Underwriters any fee, commission or other compensation specified in the
Terms Agreement. Such payment will be made by certified or official bank check
in New York Clearing House funds.
If so authorized in the Terms Agreement, the Underwriters may
solicit offers from investors of the types set forth in the Prospectus to
purchase Offered Securities from the Company pursuant to delayed delivery
contracts ("Delayed Delivery Contracts"). Such contracts shall be
substantially in the form of Exhibit I hereto but with such changes therein as
the Company may approve. Offered Securities to be purchased pursuant to
Delayed Delivery Contracts are herein called "Contract Securities." When
Delayed Delivery Contracts are authorized in the Terms Agreement, the Company
will enter into a Delayed Delivery Contract in each case where a sale of
Contract Securities arranged through you has been approved by the Company but,
except as the Company may otherwise agree, such Delayed Delivery Contracts must
be for at least the minimum amount of Contract Securities set forth in the
Terms Agreement. You will advise the Company of the proposed sales of the
Contract Securities not later than 10:00 A.M., New York City time on the third
full business day preceding the Closing Date (or at such later time as the
Company may otherwise agree). The Company will advise you not later than 10:00
A.M., New York City time, on the second full business day preceding the Closing
Date (or at such later time as you may otherwise agree) of the sales of the
Contract Securities which have been so approved. You and the other
Underwriters will not have any responsibility in respect of the validity or
performance of Delayed Delivery Contracts.
<PAGE> 11
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The amount of Offered Securities to be purchased by each
Underwriter as set forth in the Terms Agreement shall be reduced by an amount
which shall bear the same proportion to the total amount of Contract Securities
as the amount of Offered Securities set forth opposite the name of such
Underwriter bears to the total amount of Offered Securities set forth in the
Terms Agreement, except to the extent that you determine that such reduction
shall be otherwise than in such proportion and so advise the Company; provided,
however, that the total amount of Offered Securities to be purchased by all
Underwriters shall be the total amount of Offered Securities set forth in the
Terms Agreement less the aggregate amount of Contract Securities.
4. Substitution of Underwriters. (a) The Company shall
not be obligated to deliver any Offered Securities except upon payment for all
the Offered Securities to be purchased hereunder or as hereinafter provided.
(b) If any Underwriter or Underwriters shall fail
to take up and pay for the principal amount of Offered Securities agreed by
such Underwriter or Underwriters to be purchased hereunder, upon tender of such
Offered Securities in accordance with the terms hereof, and the principal
amount of Offered Securities not purchased does not aggregate more than 10% of
the total principal amount of the Offered Securities set forth in the Terms
Agreement, the remaining Underwriters shall be obligated to take up and pay for
(in proportion to their respective underwriting obligations hereunder as set
forth in the Terms Agreement, except as may otherwise be determined by you) the
Offered Securities which the withdrawing or defaulting Underwriters agreed but
failed to purchase.
(c) If any Underwriter or Underwriters shall fail
to take up and pay for the principal amount of Offered Securities agreed by
such Underwriter or Underwriters to be purchased hereunder, upon tender of such
Offered Securities in accordance with the terms hereof, and the principal.
amount of Offered Securities not purchased aggregates more than 10% of the
total principal amount of Offered Securities set forth in the Terms Agreement,
and arrangements satisfactory to you and the Company for the purchase of such
Offered Securities by other persons are not made within 36 hours thereafter,
this Agreement shall terminate.
(d) In the event of a default by any Underwriter
as set forth in this Paragraph 4, the Closing Date shall be postponed for such
period, not to exceed seven full business days, as you shall determine in order
that the
<PAGE> 12
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required changes in the Registration Statement and the Prospectus or in any
other documents or arrangements may be effected. In the event of any such
termination, the Company shall not be under any liability to any Underwriter
(except to the extent provided in Paragraphs 5(j) and 9 hereof) nor shall any
Underwriter (other than an Underwriter who shall have failed, otherwise than
for some reason permitted under this Agreement, to purchase the principal
amount of Offered Securities agreed by such Underwriter to be purchased under
this Agreement) be under any liability to the Company (except to the extent
provided in Paragraph 9 hereof). Nothing contained in this Agreement shall
relieve any defaulting Underwriter of its liability, if any, to the Company and
any non-defaulting Underwriter for damages occasioned by its default hereunder.
5. Covenants. The Company agrees:
(a) To furnish promptly to you and to counsel for
the Underwriters a signed copy of the Registration Statement and the
Prospectus (including all documents incorporated by reference therein)
as originally filed, and each amendment thereto filed with the
Commission, including all consents and exhibits filed therewith and
all documents incorporated by reference therein;
(b) To deliver promptly to you and to each
Underwriter such number of conformed copies of the Registration
Statement as originally filed and each amendment thereto (excluding
exhibits other than this Agreement), the Prospectus and any amended or
supplemented Prospectus as you may reasonably request;
(c) To cause the Prospectus Supplement to be
filed pursuant to Rule 424 under the Act and to notify you promptly of
such filing;
(d) Prior to filing with the Commission, any
amendment to the Registration Statement or subsequent supplement to
the Prospectus, or to filing any prospectus pursuant to Rule 424 of
the Rules and Regulations, to furnish a copy thereof to you and
counsel for the Underwriters and obtain your consent to the filing;
(e) To advise you promptly (i) when any amendment
to the Registration Statement has become effective or any subsequent
supplement to the Prospectus has been filed, (ii) of any request or
<PAGE> 13
-13-
proposed request by the Commission for any amendment to the
Registration Statement, a supplement to the Prospectus or for any
additional information, (iii) of the issuance by the Commission of any
stop order suspending the effectiveness of the Registration Statement
or the initiation or threat of any stop order proceedings, (iv) of
receipt by the Company of any notification with respect to the
suspension of the qualification of the Offered Securities for sale in
any jurisdiction or the initiation or threat of any proceeding for
that purpose, and (v) of the happening of any event which makes untrue
any statement of a material fact made in the Registration Statement or
the Prospectus, or which requires the making of a change in the
Registration Statement or the Prospectus in order to make any material
statement therein not misleading;
(f) Within the time during which a prospectus
relating to the Offered Securities is required to be delivered under
the Act, the Company will comply as far as it is able with all
requirements imposed upon it by the Act, as now and hereafter amended,
and by the Rules and Regulations, as from time to time in force, so
far as necessary to permit the continuance of sales of or dealings in
the Offered Securities as contemplated by the provisions hereof and
the Prospectus. If during such period any event occurs as a result of
which the Prospectus as then amended or supplemented would include an
untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein, in the light of the
circumstances then existing, not misleading, or if during such period
it is necessary to amend or supplement the Registration Statement or
the Prospectus to comply with the Act, the Company will amend or
supplement the Registration Statement or the Prospectus (at the
expense of the Company) so as to correct such statement or omission or
effect such compliance;
(g) The Company will make generally available to
its securities holders and to you as soon as practicable, but in any
event not later than 15 months after the end of the Company's current
fiscal quarter, an earnings statement (which need not be audited)
covering a 12- month period beginning after the date upon which the
Prospectus Supplement is filed pursuant to Rule 424 under the Act
which shall satisfy the provisions of Section 11(a) of the Act;
<PAGE> 14
-14-
(h) So long as the Offered Securities are
outstanding, to furnish to you copies of all public reports and all
reports and financial statements furnished by the Company to any
securities exchange pursuant to requirements of or agreements with any
such exchange or to the Commission pursuant to the Exchange Act or any
rule or regulation of the Commission thereunder;
(i) To endeavor in all reasonable respects to
qualify the Offered Securities for offer and sale under the securities
laws of such jurisdictions as you may reasonably request;
(j) To pay the costs incident to the
authorization, issuance, sale and delivery of the Offered Securities
and any taxes payable in that connection; the costs incident to the
preparation, printing and filing under the Act of the Registration
Statement and any amendments and exhibits thereto; the costs of
distributing to the Underwriters and any selected dealers the
Registration Statement as originally filed and each amendment thereto
and any post-effective amendments thereof (including exhibits), the
Prospectus and any amendment or supplement to the Prospectus as
provided in this Agreement; the costs of printing this Agreement; the
costs of filings and clearance with the National Association of
Securities Dealers, Inc. (including the reasonable fees and
disbursements of counsel for the Underwriters related thereto); the
fees paid to rating agencies in connection with the rating of the
Offered Securities; the reasonable fees and expenses of qualifying the
Offered Securities under the securities laws of the several
jurisdictions as provided in this Paragraph and of preparing and
printing a Blue Sky Memorandum (including related fees and expenses of
counsel for the Underwriters); and all other costs and expenses
incident to the performance of the obligations of the Company under
this Agreement, including, without limitation, the fees of the
Trustee, the cost of printing and engraving the certificates
representing the Securities, the cost of their personnel and other
internal costs, and all expenses and taxes incident to the sale and
delivery of the Securities to you; provided that, except as provided
in this Paragraph or in the Terms Agreement, the Underwriters shall
pay their own costs and expenses, including the fees and expenses of
their counsel; any transfer taxes on the Offered Securities which they
may sell and the expenses of advertising any offering of the Offered
Securities made by the Underwriters; and
<PAGE> 15
-15-
(k) The Company will not, without your consent,
offer or sell, or publicly announce its intention to offer or sell any
debt securities having a maturity of more than one year (except under
prior contractual commitments) during the period beginning on the date
of the Terms Agreement and ending the business day following the
Closing Date. If the Offered Securities are convertible into shares
of Class A Common Stock, the Company will comply with any similar (or
additional) restrictions on offers and sales of the Company's Class A
Common Stock, or other equity securities or securities convertible
into or exercisable for equity securities that may be specified in the
Terms Agreement. The Company has not taken, and will not take,
directly or indirectly, any action which might reasonably be expected
to cause or result in the stabilization or manipulation of the price
of any security to facilitate the sale or resale of the Offered
Securities.
6. Indemnification. (a) The Company shall indemnify and
hold harmless each Underwriter and each person, if any, who controls any
Underwriter within the meaning of the Act from and against any loss, claim,
damage or liability, joint or several, and any action in respect thereof, to
which that Underwriter or controlling person may become subject, under the Act
or otherwise, insofar as such loss, claim, damage, liability or action arises
out of, or is based upon, any untrue statement or alleged untrue statement of a
material fact contained in the Registration Statement when it became effective,
the Registration Statement or the Prospectus, or any related preliminary
prospectus supplement, or arises out of, or is based upon, the omission or
alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein not misleading, and shall reimburse
each Underwriter and each such controlling person for any legal and other
expenses reasonably incurred by that Underwriter or controlling person in
investigating or defending or preparing to defend against any such loss, claim,
damage, liability or action; provided that the Company shall not be liable in
any such case to the extent that any such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement or omission or alleged omission made in any preliminary prospectus or
in the Registration Statement or the Prospectus or any amendment or supplement
thereto in reliance upon and in conformity with written information furnished
to the Company by or on behalf of any Underwriter specifically for inclusion
therein; and, provided further, that as to any preliminary prospectus
supplement this indemnity agreement shall not inure to the benefit of any
Underwriter or any person controlling that Underwriter on account of any loss,
claim, damage, liability or action arising
<PAGE> 16
-16-
from the sale of Offered Securities to any person by the Underwriter if that
Underwriter failed to send or give a copy of the Prospectus, as the same may
be amended or supplemented, to that person within the time required by the Act,
and the untrue statement or alleged untrue statement of a material fact or
omission or alleged omission to state a material fact in such preliminary
prospectus supplement was corrected in the Prospectus. The foregoing indemnity
agreement is in addition to any liability which the Company may otherwise have
to any Underwriter or any controlling person of that Underwriter.
(b) Each Underwriter (severally, but not jointly) shall
indemnify and hold harmless the Company, each of its directors, each of its
officers who signed the Registration Statement and any person who controls the
Company within the meaning of the Act from and against any loss, claim, damage
or liability, joint or several, and any action in respect thereof, to which the
Company or any such director, officer or controlling person may become subject,
under the Act or otherwise, insofar as such loss, claim, damage, liability or
action arises out of, or is based upon, any untrue statement or alleged untrue
statement of a material fact contained in the Registration Statement when it
became effective, the Registration Statement or the Prospectus, or any related
preliminary prospectus supplement, or arises out of, or is based upon, the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, but
in each case only to the extent that the untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by or on behalf of
that Underwriter specifically for inclusion therein, and shall reimburse the
Company and any such officer, director or controlling person for any legal and
other expenses reasonably incurred by the Company or any such director, officer
or controlling person in investigating or defending or preparing to defend
against any such loss, claim, damage, liability or action. The foregoing
indemnity agreement is in addition to any liability which any Underwriter may
otherwise have to the Company or any of its directors, officers or controlling
persons.
(c) Promptly after receipt by an indemnified party under
this Paragraph of notice of any claim or the commencement of any action, the
indemnified party shall, if a claim in respect thereof is to be made against
the indemnifying party under this Paragraph, notify the indemnifying party in
writing of the claim or the commencement of that action, provided that the
failure to notify the indemnifying party shall not relieve it from any
liability
<PAGE> 17
-17-
which it may have to an indemnified party otherwise than under this Paragraph
except to the extent that the failure to give notice has materially prejudiced
the indemnifying party. If any such claim or action shall be brought against
an indemnified party, and it shall notify the indemnifying party thereof, the
indemnifying party shall be entitled to participate therein, and, to the
extent that it wishes, jointly with any other similarly notified indemnifying
party, to assume the defense thereof with counsel reasonably satisfactory to
the indemnified party. After notice from the indemnifying party to the
indemnified party of its election to assume the defense of such claim or
action, the indemnifying party shall not be liable to the indemnified party
under this Paragraph for any legal or other expenses subsequently incurred by
the indemnified party in connection with the defense thereof; provided that the
indemnified party shall have the right to employ counsel to represent such
indemnified party who may be subject to liability arising out of any claim in
respect of which indemnity may be sought by the indemnified party against the
indemnified party to be represented by separate counsel, but the fees and
expenses of such counsel shall be at the expense of such indemnified party
unless (i) the employment of counsel by such indemnified party has been
authorized by the indemnifying party, (ii) the named parties to any such action
(including any indemnifying parties) include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be one or more legal defenses available to the indemnified party
which are different from or additional to those available to the indemnifying
party (in which case the indemnifying party shall not have the right to direct
the defense of such action on behalf of the indemnified party) or (iii) the
indemnifying party shall not in fact have employed counsel to assume the
defense of such action, in each of which cases the fees and expenses of such
separate counsel shall be paid by the indemnifying party.
(d) If the indemnification provided for in this Paragraph
shall for any reason be unavailable to an indemnified party under Paragraph
6(a) or 6(b) in respect of any loss, claim, damage or liability, or any action
in respect thereof, referred to therein, then each indemnifying party shall, in
lieu of indemnifying such indemnified party, contribute to the amount paid or
payable by such indemnified party as a result of such loss, claim, damage or
liability, or action in respect thereof, (i) in such proportion as shall be
appropriate to reflect the relative benefits received by the Company on the one
hand and the Underwriters on the other from the offering of the Offered
Securities or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect
not only the relative benefits referred to in clause (i) above but also the
relative fault of the Company on the one hand
<PAGE> 18
-18-
and the Underwriters on the other with respect to the statements or omissions
which resulted in such loss, claim, damage or liability, or action in respect
thereof, 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 with respect to such offering shall be deemed to be in the same
proportion as the total net proceeds from the offering of the Offered
Securities (before deducting expenses) received by the Company bear to the
total underwriting discounts and commissions received by the Underwriters with
respect to such offering, in each case as set forth in the table on the cover
page of the Prospectus. The relative fault shall be determined by reference to
whether the untrue or alleged untrue statement of a material fact relates to
information supplied by the Company or the Underwriters, the intent of the
parties and their relative knowledge, access to information and opportunity to
correct or prevent such statement or omission. The Company and the
Underwriters agree that it would not be just and equitable if contributions
pursuant to this Paragraph were to be determined by pro rata allocation (even
if the Underwriters were treated as one entity for such purpose) or by any
other method of allocation which does not take into account the equitable
considerations referred to herein. The amount paid or payable by an
indemnified party as a result of the loss, claim, damage or liability, or
action in respect thereof, referred to above in this Paragraph shall be deemed
to include, for purposes of this Paragraph, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding the provisions of this
Paragraph, no Underwriter shall be required to contribute any amount in excess
of the amount by which the total price at which the Offered Securities
underwritten by it and distributed to the public was offered to the public
exceeds that amount of any damages which such Underwriter has otherwise paid or
become liable to pay by reason of any 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 Underwriters' obligations to contribute as provided in
this Paragraph 6(d) are several in proportion to their respective underwriting
obligations and not joint.
(e) The indemnity agreements contained in this Paragraph
and the representations, warranties and agreements of the Company in Paragraphs
2 and 5 shall survive the delivery of the Offered Securities and shall remain
in full force and effect, regardless of any termination or cancellation of this
Agreement or any investigation made by or on behalf of any indemnified party.
<PAGE> 19
-19-
7. Effective Date of Agreement and Termination. (a) This
Agreement shall become effective on the day on which this Agreement is
executed.
(b) The obligations of the Underwriters hereunder may be
terminated by you, in your absolute discretion, by notice given to and received
by the Company prior to delivery of and payment for the Offered Securities, if
prior to that time (i) since the respective date as of which information is
given in the Registration Statement and the Prospectus, any adverse change or
development involving a prospective adverse change in the financial condition
of the Company and its subsidiaries taken as a whole or the earnings or
business affairs of the Company and its subsidiaries taken as a whole, whether
or not arising in the ordinary course of business, which would, in your
judgment, make it impracticable to market the Securities on the terms and in
the manner contemplated in the Prospectus, (ii) any outbreak or escalation of
hostilities or other national or international calamity or crises, if the
effect of such outbreak, escalation, calamity, or crisis would, in your
judgment, make the offering or delivery of the Securities impracticable, (iii)
existing financial, political, economic or stock market conditions in Europe,
the United States or elsewhere, or international monetary conditions, shall
have undergone a material change which, in your judgment, materially and
adversely affects the market for the Securities or makes the offering or
delivery of the Securities impracticable; (iv) the suspension or material
limitation of trading in securities on the New York Stock Exchange, the
American Stock Exchange or the NASDAQ National Market System or limitation on
prices for securities on any such exchange or National Market System, (v) the
enactment, publication, decree or other promulgation of any federal or state
statute, regulation, rule or order of any court or other governmental authority
which in your opinion materially and adversely affects, or will materially and
adversely affect, the business or operations of the Company or any subsidiary,
(vi) the declaration of a banking moratorium by either federal or New York
State authorities or (vii) the taking of any action by any federal, state or
local government or agency in respect of its monetary or fiscal affairs which
in your opinion has a material adverse effect on the financial markets in the
United States.
8. Conditions of the Underwriters' Obligations. The obligations
of the Underwriters to purchase and pay for the Offered Securities as provided
herein are subject to the accuracy, as of the date of the Terms Agreement and
the Closing Date (as if made at the Closing Date) of the representations and
warranties of the Company contained herein, to performance by the Company of
<PAGE> 20
-20-
its obligations thereunder, and to each of the following additional terms and
conditions:
(a) No stop order suspending the effectiveness of the
Registration Statement shall have been issued, and prior to that time
no stop order proceeding shall have been initiated or threatened (and
such threat shall not have been withdrawn) by the Commission; any
request by the Commission for inclusion of additional information in
the Registration Statement or the Prospectus or otherwise shall have
been complied with; and the Company shall not have filed with the
Commission the Prospectus or any amendment or supplement to the
Registration Statement or the Prospectus without the consent of the
Representatives; and
(b) All corporate proceedings and other legal matters
incident to the authorization and validity of this Agreement, the
Terms Agreement, the Indenture and the authorization, form and
validity of the Offered Securities and the shares of Class A Common
Stock issuable upon conversion of any convertible Offered Securities
and the form of the Registration Statement and the Prospectus, other
than financial statements and other financial data, and all other
legal matters relating to this Agreement and the transactions
contemplated hereby shall be satisfactory in all respects to
____________________, counsel for the Underwriters, and the Company
shall have furnished to such counsel all documents and information
that they may reasonably request to enable them to pass upon such
matters.
(c) Counsel to the Company shall have furnished to you
their opinion addressed to the Underwriters and dated the Closing Date
to the effect that:
(i) Such counsel has no reason to believe that
any material licenses, permits, franchises and authorizations
of the Company and its subsidiaries and affiliated
partnerships are not in full force and effect and that the
Company and its subsidiaries and affiliated partnerships are
not in all material respects complying therewith.
(ii) The Company has been duly incorporated and is
validly existing in good standing as a corporation under the
laws of the State of Colorado, with corporate power and
authority to own
<PAGE> 21
-21-
its properties and conduct its business as now documented and
described in the Prospectus, and is duly qualified to do
business as a foreign corporation and in good standing in all
other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such
qualifications, except where the failure to be so qualified
will not have a Material Adverse Effect.
(iii) Each of the Company's subsidiaries has been
duly incorporated and is validly existing in good standing as
a corporation under the laws of its jurisdiction of
incorporation, with corporate power and authority to own its
properties and conduct its business as now conducted and
described in the Prospectus, and is duly qualified to do
business as a foreign corporation and in good standing in all
other jurisdictions where the ownership or leasing of its
properties or the conduct of its business requires such
qualification, except where the failure to be so qualified
will not have a Material Adverse Effect. The outstanding
shares of capital stock of each of the Company's subsidiaries
have been duly authorized and validly issued, are fully paid
and nonassessable and are owned, directly or indirectly, by
the Company free and clear of all liens, encumbrances,
equities and claims, except as set forth in the Prospectus or
except liens, encumbrances, equities and claims arising in
connection with bank indebtedness incurred in the ordinary
course of business.
(iv) Each of the Company's affiliated partnerships
has been duly formed and is validly existing in good standing
as a limited partnership under the laws of its jurisdiction of
formation, with power and authority to own its properties and
conduct its business as now conducted and described in the
Prospectus, and is duly qualified to do business as a foreign
limited partnership and in good standing in all other
jurisdictions where the ownership or leasing of its properties
or the conduct of its business requires such qualification,
except where the failure to be so qualified will not have a
Material Adverse Effect.
(v) The execution, delivery and performance of
this Agreement and any Delayed Delivery Contract by the
Company, consummation by the Company of the transactions
herein contemplated and compliance by the Company with the
provisions
<PAGE> 22
-22-
of the Indenture and the Offered Securities and if, the
Offered Securities are convertible, the shares of Class A
Common Stock issuable upon conversion of the Offered
Securities, will not conflict with, or result in the creation
or imposition of any lien, charge or encumbrance upon any of
the assets of the Company or any of its subsidiaries pursuant
to the terms of, or constitute or result in a breach or
violation of, or default under, the articles of incorporation
or bylaws of the Company or any of its subsidiaries, or the
respective certificates of or agreements of limited
partnership of any of the Company's affiliated partnerships,
or any indenture, mortgage, deed of trust, loan agreement,
lease or other agreement or instrument known to such counsel,
to which the Company or any of its subsidiaries or affiliated
partnerships is a party or by which it or any of them or their
respective properties may be bound, or any law or statute or
any judgment, decree, order, rule or regulation of any court,
governmental agency or other body applicable to the Company or
any of its subsidiaries or affiliated partnerships of any of
their respective properties. (In the case of any law, order,
rule or regulation relating to the Federal Communications Act
or the Federal Communications Commission, such counsel may
rely upon the opinion of Dow, Lohnes & Albertson, Washington,
D.C.)
(vi) The Indenture has been validly authorized by
the Company and is a valid and legally binding instrument of
the Company, subject to bankruptcy, insolvency, fraudulent
conveyance, reorganization and other laws of general
applicability relating to or affecting the enforcement of
creditors' rights and to general equity principles.
(vii) The Agreement and the Offered Securities have
been validly authorized and duly executed by authorized
officers of the Company, and when duly authenticated and
delivered by the Trustee in accordance with the provisions of
the Indenture (and, in the case of any Contract Securities, in
accordance with the provisions of the Delayed Delivery
Contracts with respect thereto), will be validly issued and
legally binding obligations of the Company, subject to
bankruptcy, insolvency, fraudulent conveyance, reorganization
and other laws of general applicability
<PAGE> 23
-23-
relating to or affecting the enforcement of creditors' rights
and to general equity principles, entitled to the benefits of
the Indenture.
(viii) If the Offered Securities are convertible,
the Offered Securities are convertible into shares of Class A
Common Stock in accordance with the terms of the Indenture;
the appropriate number of shares of Class A Common Stock
initially issuable upon conversion of the Offered Securities
in accordance with the terms of the Indenture have been duly
authorized and reserved for issuance, and will, when issued in
accordance with the terms of the Indenture, be validly issued,
fully paid and non-assessable with no personal liability
attaching to the ownership thereof; and none of the shares of
Class A Common Stock into which the Offered Securities will be
convertible will be subject to any preemptive right, or any
lien, charge or encumbrance or any other claim of any third
party.
(ix) The Offered Securities, and, if the Offered
Securities are convertible, the shares of Class A Common Stock
issuable upon conversion of the Offered Securities, and the
Indenture conform as to legal matters to the statements
concerning them in the Registration Statement and the
Prospectus.
(x) The Registration Statement is effective under
the Act and the Indenture has been qualified under the Trust
Indenture Act, and no stop order suspending its effectiveness
has been issued, and, to the knowledge of such counsel, no
proceeding for that purpose is pending or threatened by the
Commission.
(xi) To the best of the knowledge of such counsel,
there is not pending or threatened any action, suit,
proceeding, inquiry or investigation to which the Company or
any of its subsidiaries or affiliated partnerships is a party,
or to which the property of the Company or any of its
subsidiaries or affiliated partnerships is subject, before or
brought by any court or governmental agency or body, except as
described in the Prospectus and except for litigation incident
to the kind of business conducted by the Company and its
subsidiaries and affiliated partnerships which, individually
or in the aggregate, will not have a Material Adverse Effect.
<PAGE> 24
-24-
(xii) Such counsel has no reason to believe that
the Company and its subsidiaries and affiliated partnerships
have not obtained all licenses, permits, franchises and other
governmental authorizations (in the case of any law, order,
rule or administrative regulation relating to the Federal
Communications Act or the Federal Communications Commission,
such counsel may rely upon the opinion of Dow, Lohnes &
Albertson, Washington, D.C.), the lack of which would have a
Material Adverse Effect.
(xiii) Such counsel does not know of any litigation
or any governmental proceeding pending or threatened against
the Company of any of its subsidiaries which would affect the
subject matter of this Agreement or the Terms Agreement or is
required to be disclosed in the Prospectus which is not
disclosed and correctly summarized therein.
(xiv) To the best of such counsel's knowledge,
neither the Company nor any of its subsidiaries is in default
under any material agreement, indenture or instrument or in
violation of its corporate charter or bylaws.
(xv) Neither the Company nor any of its
subsidiaries is an "investment company" or a company
"controlled" by an "investment company" within the meaning of
the 40 Act.
(xvi) Such counsel does not know of any contracts
or other documents which are required to be filed as exhibits
to the Registration Statement by the Act, the Exchange Act or
by the rules and regulations which have not been filed as
exhibits to the Registration Statement or incorporated therein
by reference as permitted by the Rules and Regulations.
(xvii) The Statements made by the Prospectus under
the captions "Description of the Debt Securities" and
"Description of Capital Stock," insofar as they constitute a
summary of the provisions of documents or agreements
specifically referred to therein, fairly present the
information called for with respect thereto by Form S-3.
<PAGE> 25
-25-
In addition, as part of their opinion letter, such counsel
shall advise that, except as to financial statements and FCC
regulatory matters as to which such counsel need not express any
opinion, such counsel (A) is of the opinion that the Registration
Statement, all Preliminary Prospectuses, the Prospectus and any
supplements or amendments thereto, as of their respective effective or
issue dates, complied as to form in all material respects with the
Act, the applicable Rules and Regulations and the Trust Indenture Act,
(B) that the documents incorporated by reference in the Prospectus,
when they were filed with the Commission, complied as to form in all
material respects with the requirements of the Exchange Act and the
Rules and Regulations thereunder, (C) believes that the descriptions
in the Registration Statement and the Prospectus of statutes,
contracts and other documents, and to the best knowledge of such
counsel, all descriptions of legal or governmental proceedings and
legislative proposals (in the case of any law, order, rule or
administrative regulation relating to the Federal Communications Act
or the Federal Communications Commission, such counsel may rely upon
the opinion of Dow, Lohnes & Albertson, Washington, D.C.), are
accurate and present fairly the information required to be presented
by the Act or the Rules and Regulations and (D) although such counsel
is not passing upon and does not assume any responsibility for the
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus (relying as to materiality to a
large extent upon the opinions of officers, counsel and other
representatives of the Company) nothing has come to such counsel's
attention which would lead such counsel to believe that the
Registration Statement and the Prospectus (and any amendments or
supplements thereto), as of their respective effective or issue dates
or as of the date hereof, or the documents incorporated by reference
therein at the time they were 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 the
light of the circumstances under which they were made, not misleading,
or that the Prospectus (if amended or supplemented), as of the Closing
Date, contains any untrue statement of a material fact or omits 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.
In rendering such opinion, such counsel may rely, (A) as to
matters of fact, upon statements and certificates from officers of the
Company, public officials and other sources reasonably believed by
such counsel to
<PAGE> 26
-26-
be reliable, and (B) as to matters of law of jurisdictions other than
jurisdictions in which such counsel are admitted to the practice of
law upon opinions of other counsel reasonably acceptable to the
Underwriters; provided such counsel shall furnish the Underwriters
copies of any such opinions.
(d) Dow, Lohnes & Albertson, as special counsel to the
Company, shall have furnished to you their opinion addressed to the
Underwriters and dated the Closing Date to the effect that with
respect to matters arising under the Communications Act of 1934, as
amended, and the rules and regulations of the Federal Communications
Commission (the "FCC"):
(i) No approval of the FCC is required in
connection with the issuance and sale of the Offered
Securities;
(ii) Based on due inquiry and investigation as
described in such opinion, the Company and its subsidiaries
have such licenses relating to the cable communications
industry as are necessary under the Communications Act or
1934, as amended, and the rules and regulations of the FCC to
own their cable television systems and to conduct their cable
television business in the manner described in the Prospectus
except where the failure to have or comply with such licenses
would have a materially adverse effect on the business or
financial condition of the Company and its subsidiaries as a
whole, and such licenses contain no burdensome restrictions
not adequately described in the Prospectus, which restrictions
would have a materially adverse effect on the Company and its
subsidiaries as a whole.
(iii) The execution, delivery and performance of
this Agreement by the Company and compliance by the Company
with the provisions of the Indenture and the Offered
Securities does not and will not violate the Communications
Act of 1934, as amended, or the rules and regulations of the
FCC;
(iv) Except for matters described in the
Registration Statement, such counsel does not know of any
proceeding before the FCC to which the Company or any of its
subsidiaries is a party or involving the cable television
systems, licenses or authorizations
<PAGE> 27
-27-
of the Company or its subsidiaries, or of any cable
communications law or regulation relevant to such systems,
licenses or authorizations required pursuant to SEC Regulation
S-K to be described in the Registration Statement or the
Prospectus which is not described as required;
(v) The statements made in the Company's most
recent Annual Report on Form 10-K filed with the Commission
under the caption "Regulation and Legislation" and as updated
in the Prospectus under the caption "Risk Factors-Government
Regulation of the Cable Television Industry" and "Telephone
Company Competition," insofar as they purport to summarize
current and proposed federal legislation and regulations of
the FCC and certain court decisions specifically referred to
therein, have been reviewed by such counsel and such counsel
has no reason to believe that such sections of the
Registration Statement, as of the effective date of the
Registration Statement and as of the Closing Date, contain any
untrue statement of a material fact or omit to state a
material fact required to be stated therein or necessary to
make such statements not misleading.
(e) You shall have received from ____________________, or
such other counsel for the Underwriters designated in the Terms
Agreement, an opinion or opinions, dated the Closing Date, covering
the matters referred to in sub-heading (ii), (iii), (vi), and the
first clause of sub-heading (viii) of paragraph (c) of this Section 6
and such other related matters as you may require, and the Company
shall have furnished to such counsel such documents as they request
for the purpose of enabling them to pass upon such matters. In
rendering such opinion, such counsel may rely, as to the incorporation
of the Company and as to all other matters governed by the laws of the
State of Colorado, upon the opinion of counsel for the Company
referred to above.
In addition, such counsel shall state that such counsel has
participated in conferences with officers and other representatives of
the Company, counsel for the Company, representatives of the
independent certified public accountants of the Company and
representatives of the Underwriters at which the contents of the
Registration Statement and Prospectus and related matters were
discussed and, although such counsel is not passing upon and does not
assume any responsibility for the
<PAGE> 28
-28-
accuracy, completeness or fairness of the statements contained in the
Registration Statement and Prospectus, on the basis of the foregoing
(relying as to materiality to a large extent upon the opinions of
officers, counsel and other representatives of the Company), no facts
have come to the attention of such counsel which lead such counsel to
believe that either the Registration Statement, as of the date of this
Agreement, or the Prospectus, as of the date of the Prospectus
Supplement, and any amendments or supplements thereto (except
amendments or supplements relating to securities that are not Offered
Securities), as of their respective effective or issue dates,
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 not misleading (it being understood that such
counsel need make no comment with respect to the financial statements
and other financial and statistical information included in the
Registration Statement or Prospectus).
(f) The Company shall have furnished to you on the
Closing Date a certificate, dated the Closing Date, of its President
and its principal accounting officer stating that:
(i) The representations, warranties and
agreements of the Company in Paragraph 2 are true and correct
as of the Closing Date; the Company has complied with all its
agreements contained herein; and the conditions set forth in
Paragraph 8(a) have been fulfilled; and
(ii) They have carefully examined the Registration
Statement and the Prospectus and, in their opinion, (A) as of
the effective date of the Registration Statement, the
Registration Statement and Prospectus did not include any
untrue statement of a material fact and did not omit to state
a material fact required to be stated therein or necessary to
make the statements therein not misleading, and (B) since the
effective date of the Registration Statement, no event has
occurred which should have been set forth in a supplement to
or amendment of the Prospectus which has not been set forth in
such a supplement or amendment.
(g) The Company shall have furnished to you on the
Closing Date a letter, in form and substance satisfactory to you, of
Arthur Andersen & Co., addressed to the Underwriters and dated the
Closing
<PAGE> 29
-29-
Date, confirming that they are independent public accountants within
the meaning of the Act and are in compliance with the applicable
requirements relating to the qualification of accountants under Rule
2-01 of Regulation S-X of the Commission, and containing statements
and information of the type ordinarily included in accountants
"comfort letters" to underwriters with respect to financial statements
and certain financial information contained in or incorporated by
reference in the Registration Statement and the Prospectus.
(h) The Company shall have obtained such agreements
regarding the sale of the Company's Class A Common Stock, other equity
securities or securities convertible into or exercisable for equity
securities as may be specified in the Terms Agreement relating to
convertible Securities.
All opinions, letters, evidence and certificates mentioned above or
elsewhere in this Agreement shall be deemed to be in compliance with
the provisions hereof only if they are in form and substance
satisfactory to ____________________, counsel for the Underwriters.
9. Expenses of Underwriters. If the Company shall fail to tender
the Offered Securities for delivery to the Underwriters for any reason
permitted under this Agreement, or if the Underwriters shall decline to
purchase the Offered Securities for any reason permitted under this Agreement
other than as set forth in Paragraph 4 or Paragraph 7(b), the Company shall
reimburse the Underwriters for the reasonable fees and expenses of their
counsel and for such other out-of-pocket expenses as shall have been incurred
by them in connection with this Agreement and the proposed purchase of the
Offered Securities, and upon demand the Company shall pay the full amount
thereof to the Underwriters.
10. Notices. All notices or communications hereunder shall be
sufficient if in writing and if sent to you shall be mailed, delivered or
telegraphed and confirmed to you at your address set forth for that purpose in
the Terms Agreement. Any notice by the Underwriters to the Company shall be
sufficient if given in writing or by telegraph addressed to the Company at 9697
East Mineral Avenue, Englewood, Colorado 80112, Attention of the General
Counsel.
<PAGE> 30
-30-
11. Parties. This agreement shall inure to the benefit of and be
binding upon the Underwriters, the Company and their respective successors.
This Agreement and the terms and provisions hereof are for the sole benefit of
only those persons, except that (a) the representations, warranties,
indemnities and agreements of the Company contained in this Agreement shall
also be deemed to be for the benefit of the person or persons, if any, who
control any Underwriter within the meaning of Section 15 of the Act, and (b)
the indemnity agreement of the Underwriters contained in Paragraph 6 of this
Agreement shall be deemed to be for the benefit of directors of the Company,
officers of the Company who have signed the Registration Statement and any
person controlling the Company. Nothing in this Agreement is intended or shall
be construed to give any person other than the persons referred to in this
Paragraph any legal or equitable right, remedy or claim under or in respect of
this Agreement or any provision contained herein.
12. Certain Definition. For purposes of this Agreement, (a)
"business day" means any day on which the New York Stock Exchange, Inc. is open
for trading, (b) "subsidiary" has the meaning set forth in Rule 405 of the
Rules and Regulations and shall include affiliated partnerships only if the
Company or one of its corporate subsidiaries is a general partner of such
partnership, (c) "affiliate" has the meaning set forth in Rule 144 of the Rules
and Regulations and (d) "Material Adverse Effect" means a material adverse
effect, financial or otherwise, on the Company and its subsidiaries and its
interests and its affiliated partnerships taken as a whole.
13. Governing Law; Counterparts. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York. This
Agreement may be executed in one or more counterparts, and if executed in more
than one counterpart the executed counterparts shall together constitute a
single instrument.
<PAGE> 31
EXHIBIT I
JONES INTERCABLE, INC.
{Insert specific title of securities*}
DELAYED DELIVERY CONTRACT
{Insert date of initial public offering}*
JONES INTERCABLE, INC.
c/o*
Gentlemen:
The undersigned hereby agrees to purchase from Jones
Intercable Inc. (hereinafter called the "Company"), and the Company agrees to
sell to the undersigned. {If one delayed closing, insert -- as of the date
hereof, for delivery on _____________, 19_____ ("Delivery Date")}
{$} __________________
principal amount of the Company's {title of Securities} (the "Securities"),
offered by the Company's Prospectus relating thereto, receipt of a copy of
which is hereby acknowledged, at a purchase price of ____% of the principal
amount thereof plus accrued interest, if any, and on the further terms and
conditions set forth in this contract.
{If two or more delayed closings, insert the following:
_________________
* To be completed when the Terms Agreement is executed by the parties thereto.
<PAGE> 32
-2-
The undersigned will purchase from the Company as of the date
hereof, for delivery on the dates set forth below, Securities in the principal
amounts set forth below:
<TABLE>
<CAPTION>
Delivery Date Principal Amount
------------- ----------------
<S> <C>
</TABLE>
Each of such delivery dates is hereinafter referred to as a Delivery Date.}
Payment for the Securities which the undersigned has agreed to
purchase for delivery on {the} {each} Delivery Date shall be made to the
Company or its order by certified or official bank check in New York Clearing
House funds (as otherwise specified in the Terms Agreement) at the office of
_________________________ at __.m., _________ time, on such Delivery Date upon
delivery to the undersigned of the Securities to be purchased by the
undersigned for delivery on such Delivery Date in definitive form and in such
denominations and registered in such names as the undersigned may designate by
written or telegraphic communication addressed to the Company not less than
five full business days prior to such Delivery Date. If no designation is
received, the Securities will be registered in the name of the undersigned and
issued in a denomination equal to the aggregate principal amount of Securities
to be purchased by the undersigned on such Delivery Date.
The obligation of the undersigned to take delivery of, and
make payment for, Securities on {the} {each} Delivery Date shall be subject
only to the condition that (1) investment in the Securities shall not at such
Delivery Date be prohibited under the laws of any jurisdiction in the United
States to which the undersigned is subject, which investment the undersigned
represents is not prohibited on the date hereof and (2) the Company shall have
delivered to the Underwriters the principal amount of the Securities to be
purchased by them pursuant to the Underwriting Agreement referred to in the
Prospectus mentioned above and received payment therefor. The obligation of
the undersigned to take delivery of and make payment for Securities hereunder,
and the obligation of the Company to sell and deliver Securities hereunder,
shall not be affected by the failure of any purchaser to take delivery of and
make payment for Securities pursuant to other contracts similar to this
contract. As a material inducement to the acceptance of this offer by the
Company, the undersigned represents and
<PAGE> 33
-3-
warrants to you that its investment in the Securities which the undersigned
hereby offers to purchase is not, as of the date hereof, prohibited under the
laws of any jurisdiction to which the undersigned is subject and which govern
such investment, and the undersigned will, if the Securities are being
purchased by the undersigned under a "basket" clause or similar authorization,
use its best efforts to reserve an amount thereunder sufficient to permit such
purchase on the Delivery Date.
Promptly after completion of the sale to the Underwriters, the
Company will mail or deliver to the undersigned at its address set forth below
notice to such effect, accompanied by a copy of the opinion of counsel for the
Company delivered to the Underwriters in connection therewith.
By execution hereof, the undersigned represents and warrants
to the Company that all necessary corporate action for the due execution and
delivery of this contract and the payment for and purchase of the Securities
which the undersigned hereby offers to purchase has been taken by it and no
further authorization or approval of any governmental or other regulatory
authority is required for such execution, delivery, payment or purchase, and
that, upon acceptance hereof by the Company and mailing or delivery of a copy
as provided below, this contract will constitute a valid and binding agreement
of the undersigned in accordance with its terms.
This contract will inure to the benefit of and be binding upon
the parties hereto and their respective successors, but will not be assignable
by either party hereto without the written consent of the other.
It is understood that the acceptance of this contract and any
other similar contracts is in the Company's sole discretion and, without
limiting the foregoing, need not be on a first come-first served basis. If
this contract is acceptable to the Company, it is requested that the Company
sign the form of acceptance below and mail or deliver one of the counterparts
hereof to the undersigned at its address set forth below. This will become a
binding contract between the Company and the undersigned when such counterpart
is mailed or delivered.
This contract shall be governed by, and construed in
accordance with, the laws of the State of New York.
<PAGE> 34
-4-
Very truly yours,
(Name of Purchaser)
By
(Title of Signatory)
(Address of Purchaser)
Accepted, as of the above date.
JONES INTERCABLE, INC.
By
(Title of Signatory)
<PAGE> 35
TERMS AGREEMENT
________________, 199_
Jones Intercable, Inc.
9697 East Mineral Avenue
Englewood, Colorado 80112
Attn:
Dear Sirs:
We (the "Representative(s)") understand that Jones Intercable,
Inc., a Colorado corporation (the "Company"), proposes to issue and sell $_____
aggregate principal amount of its debt securities (the "Underwritten
Securities"). Subject to the terms and conditions set forth herein or
incorporated by reference herein, the Underwriters named in the list attached
hereto offer to purchase, severally and not jointly, the principal amounts of
such Underwritten Securities set forth opposite their names in such list at
___% of the principal amount thereof (plus accrued interest on the Underwritten
Securities from ______, 199_ to Closing Date). The Closing Date shall be
__________, 199_, at __ a.m. at the offices of ____________________________.
The Underwritten Securities shall have the terms set forth in
the Prospectus dated ____________, 199_, and the Prospectus Supplement dated
___________, 199_, including the following:
Title:
Maturity:
Interest Rate:
Interest Payment Dates:
Redemption Provisions:
Public Offering Price: __% of the principal amount thereof
Additional Terms:
All the provisions contained in the document entitled "Jones
Intercable, Inc. -- Debt Securities -- Underwriting Agreement Basic Provisions"
<PAGE> 36
-2-
and dated ______________, 199_ (the "Basic Provisions"), a copy of which you
have previously received, are herein incorporated by reference in their
entirety and shall be deemed to be a part of this Terms Agreement to the same
extent as if the Basic Provisions had been set forth in full herein, except as
provided for below. Terms defined in the Basic Provisions are used herein as
therein defined.
Please accept this offer no later than ___ o'clock _.m. on
_________, 199_, by signing a copy of this Terms Agreement in the space set
forth below and returning the signed copy to us, or by sending us a written
acceptance in the following form:
"We hereby accept your offer, set forth in the Terms
Agreement, dated ___________, 199_, to purchase the Securities on the terms set
forth therein."
Very truly yours,
By:
Title:
Address:
Accepted:
JONES INTERCABLE, INC.
By:
Title:
<PAGE> 1
March 14, 1994
Jones Intercable, Inc.
9697 E. Mineral Avenue
Englewood, Colorado 80112
Re: JONES INTERCABLE, INC.
REGISTRATION STATEMENT ON FORM S-3
RELATING TO $500,000,000 AGGREGATE
PRINCIPAL AMOUNT OF DEBT SECURITIES
Gentlemen:
I have acted as counsel for Jones Intercable, Inc., a Colorado
corporation (the "Company"), in connection with its Registration Statement on
Form S-3 (the "Registration Statement") filed with the Securities and Exchange
Commission (the "Commission") on June 18, 1993 and Pre-Effective Amendment No.
1 to the Registration Statement filed with the Commission on July 7, 1993,
which were declared effective on July 9, 1993. The Registration Statement
relates to the registration under the Securities Act of 1933 (the "1933 Act")
of an aggregate of $500,000,000 principal amount of the Company's debt
securities (the "Securities").
This opinion is delivered in accordance with the requirements of Item
601(b)(5) of Regulation S-K under the 1933 Act.
In connection with this opinion, I have examined and am familiar with
originals or copies, certified or otherwise identified to my satisfaction, of
such documents as I have deemed necessary or appropriate as a basis for the
opinions set forth herein, including (i) the Registration Statement in the form
filed by the Company with the Commission, (ii) Pre-Effective Amendment No. 1 to
the
<PAGE> 2
Jones Intercable, Inc.
March 14, 1994
Page Two
Registration Statement in the form filed by the Company with the Commission,
(iii) the Indentures in the forms filed by the Company with the Commission as
Exhibit 4 to the Company's Registration Statement No. 33-47030 on Form S-3, and
all amendments thereto incorporated by reference into the Registration
Statement through Post-Effective Amendment No. 1 to the Registration Statement
as filed contemporaneously herewith by the Company with the Commission, (iv)
form of Underwriting Agreement included as Exhibit 1 to the Post-Effective
Amendment No. 1 to the Registration Statement as filed contemporaneously
herewith by the Company with the Commission, (v) the Articles of Incorporation
and Bylaws of the Company, as in effect on the date hereof, (vi) resolutions of
the Board of Directors of the Company relating to the filing of the
Registration Statement, the proposed issuance of the Securities and related
matters (the "Board Resolutions") and (vii) Post-Effective Amendment No. 1 to
be filed contemporaneously herewith. In my examination, I have relied upon
certificates, statements and representations of the Company and others.
Based upon and subject to the foregoing, I am of the opinion that:
1. The issuance and sale by the Company of up to $500,000,000 of
Securities, as provided in the Registration Statement, have been duly and
validly authorized by all necessary corporate action by the Company.
2. When (i) the applicable Indenture and the Indenture
Supplement have been duly executed and delivered by the parties thereto, (ii)
the definitive terms of any Securities and of their issue and sale have been
duly established in conformity with resolutions of the Company's Board of
Directors and the applicable Indenture and the Indenture Supplement, (iii) such
Securities have been duly executed, authenticated and delivered in accordance
with the Indenture and the Indenture Supplement, (iv) such Securities have been
issued and sold as contemplated in the Registration Statement, the prospectus
contained therein (the "Prospectus"), the applicable Indenture and in the
applicable supplement to the Prospectus and the supplement to the Indenture,
such Securities will constitute valid and legally binding obligations of the
Company, entitled to the benefits provided by the applicable Indenture, except
(A) the enforceability thereof may
<PAGE> 3
Jones Intercable, Inc.
March 14, 1994
Page Three
be limited by bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors' rights generally
and (B) the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to certain equitable defenses and to the
discretion of the court before which any proceeding therefor may be brought and
(v) that the Post-Effective Amendment No. 1 has been declared effective under
the 1933 Act.
I hereby consent to the filing of this opinion with the Commission as
Exhibit 5 to the Registration Statement. I also consent to the reference to me
under the heading "Legal Matters" in the Prospectus included in the
Registration Statement.
Very truly yours,
/s/ ELIZABETH M. STEELE
Elizabeth M. Steele
General Counsel
