<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15 of the
Securities Exchange Act of 1934
Date of Report: February 13, 1995
Date of Earliest Event Reported: February 3, 1995
TELE-COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its Charter)
DELAWARE
(State or other jurisdiction of incorporation)
0-20421 84-1260157
(Commission File Number) (I.R.S. Employer Identification No.)
5619 DTC PARKWAY
ENGLEWOOD, COLORADO 80111-3000
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES)
Registrant's telephone number, including area code: (303) 267-5500
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ITEM 5. OTHER EVENTS.
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Pursuant to a registration statement on Form S-3 (File No. 33-56271) (the
"Registration Statement") filed with the Securities and Exchange Commission (the
"Commission") under the Securities Act of 1933, as amended (the "Act"), and
declared effective by the Commission on January 20, 1995, the Registrant has
registered (i) shares of the Registrant's Class A Common Stock, $1.00 par value
per share ("Class A Common Stock"), shares of the Registrant's Class B Common
Stock, $1.00 par value per share, and shares of any class of common stock that
may hereafter be created through an amendment to the Registrant's Restated
Certificate of Incorporation, (ii) shares of the Registrant's Series Preferred
Stock, $.01 par value per share, which may be issued in the form of depositary
shares evidenced by depositary receipts, and (iii) warrants to purchase common
stock or preferred stock of the Registrant (each of the foregoing securities are
collectively referred to herein as the "Equity Securities"), for delayed or
continuous offering to the public pursuant to Rule 415 under the Act for an
aggregate initial offering price not to exceed $575,000,000. Reference is made
to the Registration Statement for further information concerning the terms of
the securities registered pursuant to the Registration Statement and the
offering thereof.
On February 3, 1995, an underwriting agreement (the "Underwriting
Agreement"), substantially in the form of Exhibit 1.1 to the Registration
Statement, and a Pricing Agreement (the "Pricing Agreement"), substantially in
the form attached as Annex I to the Underwriting Agreement, were executed by
Morgan Stanley & Co. Incorporated (the "Underwriter") providing for the sale by
the Registrant to, and the offering to the public by, the Underwriter of
19,550,000 shares of Class A Common Stock (the "Shares"). The net proceeds to
the Registrant from the
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sale of the Shares will be $400,775,000 before deducting expenses of the
Registrant. The Underwriting Agreement and the Pricing Agreement are filed as
Exhibits 1.1 and 1.2 hereto, respectively. The Registrant has estimated that
expenses of $500,000 will be payable by it in connection with the sale of the
Shares.
The description of certain provisions of the Shares and information
concerning the terms of their purchase and offering to the public by the
Underwriter, are incorporated herein by reference (i) to the section entitled
"Description of Common Stock -- Class A and Class B Common Stock" of the
Prospectus, dated February 3, 1995 (the "Prospectus"), and (ii) to the section
entitled "Underwriter" in the Prospectus Supplement thereto, dated February 3,
1995 (the "Prospectus Supplement"), each of which has been filed with the
Commission pursuant to Rule 424(b) under the Act.
Pursuant to Item 601(a) of Regulation S-K promulgated by the Commission
("Regulation S-K"), the Registrant filed as Exhibit 5 to the Registration
Statement an opinion, dated January 12, 1995, rendered to the Registrant by
Baker & Botts, L.L.P., counsel to the Registrant, as to the matters referred to
in Item 601(b)(5)(i) of Regulation S-K with respect to the Equity Securities
generally. On February 10, 1995, Baker & Botts, L.L.P. rendered to the
Registrant an opinion (the "Opinion") as to such matters specifically relating
to the Shares. A copy of the opinion is filed as Exhibit 5.1 hereto and
includes the consent of Baker & Botts, L.L.P. (the "Consent") to the reference
to its name in the Prospectus Supplement.
The Registrant is filing this Current Report on Form 8-K in order to cause
the Underwriting Agreement, Pricing Agreement, the Opinion and the Consent to be
incorporated into the Registration Statement by reference. By filing this
Current Report on Form 8-K, however,
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the Registrant does not believe that any of the Underwriting Agreement, the
Pricing Agreement, the Opinion, the Consent or the information set forth herein
represent, either individually or in the aggregate, a "fundamental change" (as
such term is used in Item 512(a)(1)(ii) of Regulation S-K) in the information
set forth in the Registration Statement.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
<TABLE>
<CAPTION>
Exhibits
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<S> <C>
1.1 Underwriting Agreement, dated February 3, 1995, between Morgan
Stanley & Co. Incorporated and the Registrant.
1.2 Pricing Agreement, dated February 3, 1995, between Morgan
Stanley & Co. Incorporated and the Registrant.
5.1 Opinion, dated February 10, 1995, of Baker & Botts, L.L.P.,
counsel to the Registrant, as to legality of the Shares.
24.1 Consent of Baker & Botts, L.L.P. (included in Exhibit 5.1).
</TABLE>
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SIGNATURES
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Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: February 10, 1995
TELE-COMMUNICATIONS, INC.
(Registrant)
By: /s/ John C. Malone
_______________________________
Name: John C. Malone
Title: President
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EXHIBIT INDEX
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<TABLE>
<CAPTION>
Exhibits
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<S> <C>
1.1 Underwriting Agreement, dated February 3, 1995 between Morgan
Stanley & Co. Incorporated and the Registrant.
1.2 Pricing Agreement, dated February 3, 1995, between Morgan
Stanley & Co. Incorporated and the Registrant.
5.1 Opinion, dated February 10, 1995, of Baker & Botts, L.L.P.,
counsel to the Registrant, as to legality of the Shares.
24.1 Consent of Baker & Botts, L.L.P. (included in Exhibit 5.1).
</TABLE>
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Exhibit 1.1
TELE-COMMUNICATIONS, INC.
UNDERWRITING AGREEMENT
February 3, 1995
To the Representatives of the
several Underwriters named in
the respective Pricing Agreement
hereinafter described
Dear Sirs:
From time to time Tele-Communications, Inc., a Delaware corporation (the
"Company"), proposes to enter into one or more Pricing Agreements (each, a
"Pricing Agreement") in the form of Annex I, with such additions and deletions
as the parties may determine, and, subject to the terms and conditions stated
herein and therein, to issue and sell to the firms named in Exhibit A to the
applicable Pricing Agreement (such firms constituting the "Underwriters" with
respect to such Pricing Agreement and the securities specified therein) certain
shares of its common stock, which may be Class A Common Stock, $1.00 par value
per share, Class B Common Stock, $1.00 par value per share, and/or any class of
common stock that may hereafter be created through an amendment to the Company's
Restated Certificate of Incorporation (collectively, the "Common Stock"), shares
of its Series Preferred Stock, par value $.01 per share (the "Preferred Stock"),
and, if applicable, certain depositary shares representing shares of Preferred
Stock (the "Depositary Shares"), warrants to purchase Common Stock (the "Common
Stock Warrants"), and/or warrants to purchase Preferred Stock and, if
applicable, Depositary Shares representing such Preferred Stock (the "Preferred
Stock Warrants"). (The Common Stock, the Preferred Stock, the Depositary
Shares, the Common Stock Warrants and the Preferred Stock Warrants specified in
Exhibit B to the applicable Pricing Agreement are collectively called the
"Offered Securities.") Each of the Offered Securities shall have the terms set
forth in Exhibit B to the applicable Pricing Agreement. The term "Underwriters"
as used herein will mean and refer collectively to you and to the other several
Underwriters named in Exhibit A to the applicable Pricing Agreement (and any
substitute Underwriter pursuant to Section 9 hereof), the term "Underwriter"
will refer to any of the several Underwriters named in Exhibit A to the
applicable Pricing Agreement (and any substitute underwriter pursuant to Section
9 hereof), and the term "Representatives" will refer to the Representatives
named in the applicable Pricing Agreement as the Representatives of the several
Underwriters. Any reference to you in this Agreement or in the applicable
Pricing
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Agreement shall be solely in your capacity as Representatives. The Company
confirms as follows its agreement with you and the Underwriters.
1. Registration Statement and Prospectus: The Company has filed with the
Securities and Exchange Commission (the "Commission"), in accordance with the
Securities Act of 1933, as amended, and the rules and regulations of the
Commission promulgated thereunder (collectively called the "Act"), a shelf
registration statement on From S-3 (File No. 33-56271), including a prospectus,
relating to certain equity securities of the Company, which has become effective
under the Act, and will promptly file with the Commission a prospectus
supplement specifically relating to the Offered Securities pursuant to Rule 424
under the Act. As used in this Agreement, the term "Registration Statement"
means such registration statement, including exhibits and financial statements
and schedules and documents incorporated by reference therein, as amended or
supplemented to the date hereof and, in the case of reference to the
Registration Statement as of a date subsequent to the date hereof, as amended or
supplemented as of such date. The term "Basic Prospectus" means the prospectus
dated February 3, 1995 as filed with the Commission pursuant to Rule 424 under
the Act. The term "Prospectus" means the Basic Prospectus together with the
prospectus supplement specifically relating to the Offered Securities as filed
with the Commission pursuant to Rule 424 under the Act. The term "preliminary
prospectus" means any preliminary prospectus supplement specifically relating to
the Offered Securities together with the Basic Prospectus. Any reference herein
to any preliminary prospectus or the Prospectus, as the case may be, except the
reference in Section 4(c), shall be deemed to refer to and include any documents
filed after such date under the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), and so incorporated by reference.
2. Agreements to Sell and Purchase: The Company agrees to sell to the
Underwriters, and upon the basis of the representations, warranties and
agreements of the Company herein contained and subject to the terms and
conditions of this Agreement and the applicable Pricing Agreement the
Underwriters agree to purchase from the Company, severally and not jointly, the
number of Offered Securities set forth opposite each Underwriter's respective
name in Exhibit A to such Pricing Agreement, at a purchase price specified
therein.
If any Offered Securities consist of shares of Preferred Stock and the
Prospectus so provides, such shares of Preferred Stock will be deposited by the
Company against delivery of receipts ("Depositary Receipts") to be issued by a
depositary to be named by the Company (the "Depositary") under a deposit
agreement (a "Deposit Agreement") between the Company, the Depositary and the
holders from time to time of the Depositary Receipts issued thereunder and
evidencing Depositary Shares. Each Depositary Share will represent the number
of deposited shares of Preferred Stock specified in the applicable prospectus
supplement and in Exhibit B to the applicable Pricing Agreement.
If any Offered Securities consist of Common Stock Warrants or Preferred
Stock Warrants, such Warrants will be issued under a warrant agreement (a
"Warrant Agreement") to be to be entered into by the Company with a warrant
agent (the "Warrant Agent") to be designated by the Company. Each Common Stock
Warrant and Preferred Stock Warrant will represent the right
<PAGE>
to purchase the number of shares of Common Stock or Preferred Stock,
respectively, at the exercise price and during the period specified in the
applicable prospectus supplement and in Exhibit B to the applicable Pricing
Agreement.
The terms and rights of any particular issuance and sale of Offered
Securities shall be as specified in the applicable Pricing Agreement and, if the
Offered Securities include (i) Preferred Stock, in or pursuant to a resolution
or resolutions of the Board of Directors of the Company or a duly authorized
committee thereof and set forth in a certificate of designations (the
"Certificate of Designations") to be filed with the Secretary of State of the
State of Delaware pursuant to Section 151 of the General Corporation Law of the
State of Delaware (the "General Corporation Law") and/or (ii) Common Stock
Warrants or Preferred Stock Warrants, in the Warrant Agreement entered into with
the Warrant Agent.
Common Stock, Preferred Stock, Depositary Shares, Common Stock Warrants and
Preferred Stock Warrants may be offered and sold separately or as units, as
specified in the applicable prospectus supplement and in Exhibit B to the
Pricing Agreement.
The particular sales of certain Offered Securities may be made from time to
time to the Underwriters specified in the applicable Pricing Agreement, for whom
you may act as Representatives. (The term "Representatives" also refers to a
single firm acting as sole representative of the Underwriters and to
Underwriters who act without any firm being designated as their representative.)
The obligation of the Company to issue and sell, and the obligation of you or
any of the Underwriters to purchase, shall be evidenced by the applicable
Pricing Agreement with respect to the Offered Securities specified therein, and,
prior to the execution of such Pricing Agreement, this Agreement shall not be
construed as an obligation of the Company to sell any Offered Securities or as
an obligation of the Underwriters to purchase any Offered Securities. A Pricing
Agreement in the form of Annex I shall be in the form of an executed writing
(which may be in counterparts), and may be evidenced by an exchange of
telegraphic communications or any other rapid transmission device designed to
produce a written record of communications transmitted. The obligations of the
Underwriters under this Agreement and the applicable Pricing Agreement shall be
several and not joint.
Each Pricing Agreement shall specify the aggregate number of Offered
Securities that the Company proposes to issue and sell (the "Firm Securities")
and, with respect to any grant by the Company to the Underwriters of the option
described in Section 3 hereof, the maximum number of Offered Securities that the
Company proposes to issue and sell to cover over-allotments (the "Optional
Securities"), the initial public offering price of such Firm Securities and
Optional Securities or the manner of determining such price, the purchase price
to the Underwriters of such Firm Securities and Optional Securities, the names
of the Underwriters, the names of the Representatives of such Underwriters, the
number of such Firm Securities and Optional Securities, if any, to be purchased
by each Underwriter and the commission, if any, payable to the Underwriters with
respect thereto. The Pricing Agreement shall also specify (to the extent not
set forth in the Registration Statement and Prospectus with respect thereto) the
terms of such Firm Securities and Optional Securities.
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Upon the execution of the Pricing Agreement applicable to any Offered
Securities and authorization by the Representatives of the release of the Firm
Securities, the Company understands that the Underwriters propose to offer the
Firm Securities for sale upon the terms and conditions set forth in the
Prospectus, as amended or supplemented.
With respect to any Offered Securities purchased by an Underwriter that
such Underwriter continues to own or hold at any time on or after the 90th day
following the applicable Closing Date (as defined in Section 3), such
Underwriter agrees that upon receipt of written notice by the Representatives
from the Company of the Company's intention to bid for or purchase any Offered
Security or any security of the same class and series as the Offered Securities
or to take any other action, directly or indirectly, the taking of which would
be proscribed by Rule 10b-6 promulgated by the Commission under the Exchange Act
(or any successor or equivalent rule or regulation) during the distribution of
the Offered Securities, such Underwriter will, and will cause its "affiliated
purchasers" (as defined in said Rule) to, cease distributing any Offered
Securities for such period of time as the Company may deem necessary so that the
action or actions proposed to be taken by it directly or indirectly may be taken
in full compliance with such Rule (or any successor or equivalent rule or
regulation).
3. Delivery and Payment: Delivery of and payment for the Firm Securities
shall be made on the date and at the time agreed to in the applicable Pricing
Agreement (such time and date are referred to herein as a "Closing Date"), at
the office of Baker & Botts, L.L.P., 885 Third Avenue, Suite 1900, New York, New
York. The Closing Date and the place of delivery of and payment for the Firm
Securities may be varied by agreement between you and the Company.
Delivery of Firm Securities (in definitive form and registered in such
names as you shall request at least two business days prior to a Closing Date by
written notice of the Company) shall be made to you for the account of the
respective Underwriters against payment by you on behalf of the respective
Underwriters of the purchase price therefor by cashier or official bank check or
checks payable to the order of the Company in New York Clearing House (next day)
funds. The Company agrees to make the Firm Securities (or Depository Receipts
representing any Firm Securities) available to you for inspection at least 24
hours prior to the Closing Date or such shorter period of time as you may agree
to.
If the applicable Pricing Agreement grants to the Underwriters the right
(an "Over-Allotment Option") to purchase at their election up to the number of
Optional Securities allocated to each of the several Underwriters in the
applicable Pricing Agreement, upon the terms and conditions specified herein and
therein, for the sole purpose of covering over-allotments in the sale of the
Firm Securities, such election to purchase Optional Securities may be exercised
by written notice from the Representatives within the period specified in the
applicable Pricing Agreement setting forth the aggregate number of Optional
Securities to be purchased, the number of Optional Securities to be purchased by
each of the Underwriters, and the date on which such Optional Securities are to
be delivered, as determined by the Representatives but in no event earlier than
the Closing Date or, unless the Representatives and the Company otherwise agree
in writing, later than the time specified in the applicable Pricing Agreement.
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4. Agreements of the Company: The Company agrees with you as follows:
(a) The Company will notify you promptly, and (if requested by you in
writing) will confirm such advice in writing, (1) of the effectiveness of
any amendment to the Registration Statement and of the filing of any
supplement to the Prospectus, (2) of any comments of the Commission
regarding the Registration Statement or the Prospectus (or any of the
documents incorporated by reference therein) or of any request by the
Commission for amendments or supplements to the Registration Statement or
the Prospectus or for additional information, (3) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or the initiation or threatening of any proceedings
for that purpose, (4) of the receipt by the Company of any notification
with respect to the suspension of the qualification of the Offered
Securities for offer or sale in any jurisdiction or the initiation or
threatening of any proceedings for such purpose and (5) of the happening of
any event during the period mentioned in paragraph (d) below which makes
any statement of a material fact made in the Registration Statement or the
Prospectus (as theretofore amended or supplemented) untrue or which
requires the making of any changes in the Registration Statement or the
Prospectus (as theretofore amended or supplemented) in order to make the
statements therein, in light of the circumstances when the Prospectus is
delivered to a purchaser, not misleading. The Company will use its
reasonable best efforts to prevent the issuance of any order suspending the
effectiveness of the Registration Statement or suspending the qualification
of the Offered Securities for offer or sale in any jurisdiction, and if any
such order is issued, the Company will make every reasonable effort to
obtain the withdrawal of such order at the earliest possible time.
(b) The Company will furnish to each of you, without charge, one
conformed copy of the Registration Statement and any supplement and post-
effective amendment thereto, including all financial statements and
schedules, exhibits and documents incorporated therein by reference
(including exhibits incorporated therein by reference to the extent not
previously furnished to you) and will deliver to you for delivery to each
Underwriter the number of conformed copies of the Registration Statement
and any post-effective amendment thereto, excluding exhibits, as you may
request.
(c) The Company will give you advance notice of its intention to file
any amendment or supplement to the Registration Statement or the Prospectus
with respect to the Offered Securities, and will not file any such
amendment or supplement to which you shall reasonably object in writing.
(d) During the period of time that the Prospectus is required by law
to be delivered, the Company will deliver to you for delivery to each
Underwriter, without charge, as many copies of the Prospectus or any
amendment or supplement thereto as you may reasonably request on behalf of
the Underwriters. The Company consents to the use of the Prospectus or any
amendment or supplement thereto by the Underwriters and by all dealers to
whom the Offered Securities may be sold, in connection with the offering
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or sale of Offered Securities and for such period of time thereafter as the
Prospectus is required by law to be delivered in connection therewith. If
during such period of time any event shall occur which in the judgment of
the Company should be set forth (or incorporated by reference) in the
Prospectus in order to make the statements therein, in light of the
circumstances when the Prospectus is delivered to a purchaser, not
misleading, or if it is necessary to supplement or amend the Prospectus to
comply with law, the Company will forthwith prepare and duly file with the
Commission an appropriate supplement or amendment thereto, and forthwith
file all reports and any definitive proxy statement or information
statement required to be filed by the Company with the Commission pursuant
to Section 13 or 14 of the Exchange Act subsequent to the date of the
Prospectus, and will deliver to you, without charge, such number of copies
thereof as you may reasonably request on behalf of the Underwriters. If
during such period of time any event shall occur which in your judgment
should be so set forth (or incorporated by reference) in the Prospectus, or
which in your judgment makes it necessary to so supplement or amend the
Prospectus, the Company will consult with you concerning the necessity of
filing with the Commission a supplement or an amendment to the Prospectus
or a report pursuant to Section 13 or 14 of the Exchange Act.
(e) Prior to any public offering of any Offered Securities by the
Underwriters, the Company will cooperate with you and counsel retained by
you on behalf of the Underwriters in connection with the registration or
qualification of Offered Securities (and any securities issuable upon
conversion or exercise of any Offered Securities) for offer and sale under
the securities or Blue Sky laws of, and the determination of the
eligibility of Offered Securities for investment under the laws of, such
jurisdictions as you request; provided, that in no event shall the Company
be obligated to qualify to do business as a foreign corporation or as a
securities dealer in any jurisdiction where it is not now so qualified, to
conform its capitalization or the composition of its assets to the
securities or Blue Sky laws of any jurisdiction or to take any action which
would subject it to taxation or general service of process in any
jurisdiction where it is not now so subject. The Company will pay all
reasonable fees and expenses (including reasonable counsel fees and
expenses) relating to registration or qualification of Offered Securities
(and any securities issuable upon conversion or exercise of any Offered
Securities) under such securities or Blue Sky laws and in connection with
the determination of the eligibility of Offered Securities for investment
under the laws of such jurisdictions as you may designate.
(f) The Company will make generally available to its security holders
and to you and to each Underwriter who may request the same consolidated
earnings statements (which need not be audited) that satisfy the provisions
of Section 11(a) of the Act and Rule 158 thereunder.
(g) The Company will pay or cause to be paid the following: (1) all
costs and expenses incurred in connection with the preparation, printing
and filing of the Registration Statement, any preliminary prospectus, the
Prospectus, any legal investment memorandum and Blue Sky memorandum as
contemplated by Section 4(e), (2) any filing
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fees incident to any required review of the Offered Securities by the
National Association of Securities Dealers, Inc. of the terms of the sale
of the Offered Securities, (3) any fees charged by securities rating
agencies for rating any of the Offered Securities, (4) all costs and
expenses incurred in connection with the preparation, issuance and delivery
of the Offered Securities (including Depositary Receipts evidencing
Depositary Shares) (other than transfer taxes), (5) all expenses incurred
in connection with the preparation, execution and delivery of any Deposit
Agreement or Warrant Agreement and, to the extent set forth therein, the
fees and expenses of the Depositary or the Warrant Agent, respectively, (6)
the cost of printing of any Dealer Agreement, and (7) all costs and
expenses incurred in connection with furnishing such copies of the
Registration Statement, the Prospectus and any preliminary prospectus, and
all amendments and supplements thereto, as may be requested for use in
connection with the offering and sale of Offered Securities by dealers to
whom Offered Securities may be sold.
(h) If this Agreement is terminated by you because any condition to
the obligations of you and the Underwriters set forth in Section 7 hereof
is not satisfied or because of any failure or refusal on the part of the
Company to comply with the terms of this Agreement or the applicable
Pricing Agreement, or if for any reason the Company shall be unable to
perform its obligations herein or therein, the Company will reimburse you
on behalf of the Underwriters for all out-of-pocket expenses (including the
fees and expenses of counsel retained by you on behalf of the Underwriters)
reasonably incurred by you in connection herewith. The Company will not in
any event be liable to you or any of the Underwriters for damages on
account of loss of anticipated profits.
(i) From the date hereof to and including the applicable Closing Date,
the Company will not offer or sell, or contract to sell, Offered Securities
pursuant to a public offering without your prior written consent.
5. Representations and Warranties of the Company: The Company represents
and warrants to each Underwriter that:
(a) the documents incorporated by reference in the Registration
Statement and the Prospectus, when they were filed (or, if an amendment
with respect to any such document was filed, when such amendment was filed)
with the Commission, conformed in all material respects to the requirements
of the Exchange Act and the rules and regulations of the Commission
promulgated thereunder, and any further documents so filed and incorporated
by reference will, when they are filed with the Commission, conform in all
material respects to the requirements of the Exchange Act and the rules and
regulations of the Commission promulgated thereunder; none of such
documents, when it was filed (or, if an amendment with respect to any such
document was filed, when such amendment was filed), contained an untrue
statement of a material fact or omitted to state a material fact required
to be stated therein or necessary to make the statements therein, in light
of the circumstances under which they were made, not misleading; and no
such further document, when it is filed, will contain an untrue statement
of a material fact or
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<PAGE>
will omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances
under which they are made, not misleading;
(b) the Registration Statement, when declared effective by the
Commission, complied in all material respects with the requirements of the
Act; each preliminary prospectus, if any, relating to the Offered
Securities, filed pursuant to Rule 424 under the Act, will comply when so
filed in all material respects with the Act; and when the Prospectus is
first filed with the Commission pursuant to Rule 424 and as of the
applicable Closing Date, the Registration Statement and the Prospectus (as
amended or supplemented, if applicable) will comply in all material
respects with the requirements of the Act. When it was declared effective
by the Commission, the Registration Statement did not, and as of the date
the Prospectus is first filed with the Commission pursuant to Rule 424 and
as of the applicable Closing Date the Registration Statement (as amended or
supplemented, if applicable) will not, contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not misleading. When
the Prospectus is first filed with the Commission pursuant to Rule 424 and
as of the applicable Closing Date, the Prospectus (as amended or
supplemented, if applicable) will not contain an untrue statement of a
material fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Notwithstanding
the foregoing, this representation and warranty does not apply to
statements or omissions in the Registration Statement or the Prospectus or
any preliminary prospectus made in reliance upon information furnished to
the Company in writing by the Underwriters through the Representatives
expressly for use therein;
(c) the Offered Securities have been duly authorized by the Company
and conform to the descriptions thereof in the Prospectus and in the
related Pricing Agreement;
(d) if any of the Offered Securities is Common Stock, such Common
Stock has been duly and validly authorized and, when such Common Stock is
issued and delivered pursuant to this Agreement and the Pricing Agreement
and paid for by the Underwriters in accordance therewith, such Common Stock
will be duly and validly issued and fully paid and non-assessable;
(e) if any of the Offered Securities is Preferred Stock, such
Preferred Stock has been duly and validly authorized and, upon the filing
of a Certificate of Designations for such Preferred Stock with the Delaware
Secretary of State and the issuance and delivery of such Preferred Stock
against payment therefor by the Underwriters in accordance with this
Agreement and the Pricing Agreement, such Preferred Stock will be duly and
validly issued and fully paid and non-assessable; if such Preferred Stock
is convertible into Common Stock, the Common Stock initially issuable upon
exercise of such Preferred Stock has been reserved for issuance upon such
conversion and, when issued in
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accordance with the terms of the Certificate of Designations upon
conversion of such Preferred Stock, such Common Stock will be duly
authorized, validly issued, fully paid and non-assessable;
(d) if the Offered Securities include Preferred Stock and Depositary
Shares, the Deposit Agreement has been duly authorized and, when executed
and delivered by the Company at the Closing Date and, assuming due
authorization, execution and delivery by the Depositary, at such Closing
Date will constitute a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and to
general equity principles (regardless of whether the issue of
enforceability is considered in a proceeding at law or in equity); when
such Preferred Stock is issued and delivered to the Depositary against
receipt of Depositary Receipts evidencing such Depositary Shares and
payment therefor by the Underwriters in accordance with this Agreement and
the Pricing Agreement, such Depositary Shares will be duly and validly
issued and the persons in whose names the Depositary Receipts are
registered shall be entitled to the rights specified therein and in the
Deposit Agreement;
(e) if the Offered Securities include Common Stock Warrants or
Preferred Stock Warrants, the Warrant Agreement has been duly authorized
and, when executed and delivered by the Company at the Closing Date and,
assuming due authorization, execution and delivery by the Warrant Agent, at
such Closing Date will constitute a valid and legally binding agreement of
the Company enforceable in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency, reorganization, moratorium and other
laws of general applicability relating to or affecting creditors' rights
and to general equity principles (regardless of whether the issue of
enforceability is considered in a proceeding at law or equity); such Common
Stock Warrants or Preferred Stock Warrants have been duly authorized and,
when such Common Stock Warrants or Preferred Stock Warrants are issued and
delivered against payment therefor by the Underwriters in accordance with
this Agreement and the Pricing Agreement, and countersigned by the Warrant
Agent as provided in the Warrant Agreement, such Common Stock Warrants or
Preferred Stock Warrants (x) will constitute valid and legally binding
obligations of the Company enforceable in accordance with their terms,
subject as to enforcement to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless of whether
the issue of enforceability is considered in a proceeding at law or equity)
and (y) the persons in whose names such Common Stock Warrants or Preferred
Stock Warrants are registered shall be entitled to the rights specified
therein and in the Warrant Agreement; and the securities initially issuable
upon exercise of such Common Stock Warrants or Preferred Stock Warrants
have been reserved for issuance upon such exercise and, when issued in
accordance with the terms of the Warrant Agreement against payment of the
exercise price provided for in the Warrant Agreement, such securities will
be duly authorized, validly issued, fully paid and non-assessable;
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(f) the issuance and sale of the Offered Securities and the fulfillment of
the terms of this Agreement and the related Pricing Agreement will not
result in a breach of any of the terms or provisions of, or constitute a
default under, the Company's charter or by-laws or any indenture, mortgage,
deed of trust or other material agreement or instrument to which the
Company or any of its significant subsidiaries (as such term is defined in
Rule 1-02(v) of Regulation S-X) is now a party or by which it is bound, or
any order of any court or governmental agency or authority entered in any
proceeding to which the Company or any of its significant subsidiaries was
or is now a party or by which it is bound;
(g) KPMG Peat Marwick LLP, the Company's auditors, are independent
accountants as required by the Act;
(h) so long as may be required for the distribution of the Offered
Securities by any Underwriter or by any dealers that participate in the
distribution thereof, the Company will comply with all requirements under
the Exchange Act relating to the timely filing with the Commission of its
reports pursuant to Section 13 of the Exchange Act and of its proxy
statements pursuant to Section 14 of the Exchange Act; and
(i) except to the extent set forth in the Prospectus, the Company has
not received any notice of, nor does it have any actual knowledge of, any
failure by it or any of its significant subsidiaries to be in substantial
compliance with all existing statutes and regulations applicable to it or
such subsidiaries, which failure would materially and adversely affect the
conduct of the business of the Company and its subsidiaries, considered as
a whole.
6. Indemnification: The Company agrees to indemnify and hold harmless
each Underwriter, and each person, if any, who controls each Underwriter within
the meaning of either Section 15 of the Act or Section 20 of the Exchange Act,
from and against any and all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation) arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any preliminary prospectus, or
arising out of or based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading, except insofar as such omission or allegation thereof based upon
information furnished in writing to the Company by an Underwriter through the
Representatives expressly for user therein; provided, however, that the Company
shall not indemnify an Underwriter or any person who controls such Underwriter
for any such losses, claims, damages or liabilities alleged by any person who
purchased Offered Securities from such Underwriter if the untrue statement,
omission or allegation thereof upon which such losses, claims, damages or
liabilities are based was made in: (i) any preliminary prospectus, if a copy
of the Prospectus (as then amended or supplemented) was not sent or given by or
on behalf of such Underwriter to such person at or prior to the written
confirmation of the sale of Offered Securities to such person, and if the
Prospectus (as so amended or supplemented) corrected the
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untrue statement or omission giving rise to such loss, claim, damage or
liability; (ii) any Prospectus used by such Underwriter or any person who
controls such Underwriter, after such time as the Company advised the
Representatives that the filing of a post-effective amendment or supplement
thereto was required, except the Prospectus as so amended or supplemented; or
(iii) any Prospectus used after such time as the obligation of the Company to
keep the same current and effective has expired. This indemnity will be in
addition to any liability which the Company may otherwise have. All fees and
expenses which are reimbursable pursuant to this Section 6 shall be reimbursed
as they are incurred.
If any action or proceeding (including any governmental investigation)
shall be brought or asserted against an Underwriter or any person controlling an
Underwriter in respect of which indemnity may be sought from the Company, such
Underwriter or such controlling person shall promptly notify the Company in
writing, and the Company shall assume the defense thereof, including the
employment of counsel reasonably satisfactory to you and the payment of all
expenses. Any omission so to notify the Company shall not, however, relieve
the Company from any liability which it may have to any indemnified party
otherwise than under this Section 6. An Underwriter or any person controlling
an Underwriter shall have the right to employ separate counsel in any such
action or proceeding and to participate in the defense thereof, but the fees and
expenses of such separate counsel shall be at such Underwriter's expense or the
expense of such controlling person unless (a) the Company has agreed to pay such
fees and expenses or (b) the Company shall have failed to assume the defense of
such action or proceeding and employ counsel reasonably satisfactory to you in
any such action or proceeding or (c) the named parties to any such action or
proceeding (including any impleaded parties) include both such Underwriter and
such controlling person, and you shall have been advised by your counsel that
there may be a conflict of interest between such Underwriter or such controlling
person and the Company in the conduct of the defense of such action (in which
case, if such Underwriter or such controlling person notifies the Company in
writing that it elects to employ separate counsel at the expense of the Company,
the Company shall not have the right to assume the defense of such action or
proceeding on behalf of such Underwriter or such controlling person), it being
understood, however, that the Company shall not, in connection with any one such
action or proceeding or separate but substantially similar or related actions or
proceedings arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (unless the members of such firm are not admitted to practice in a
jurisdiction where an action is pending, in which case the Company shall pay the
reasonable fees and expenses of one additional firm of attorneys to act as local
counsel in such jurisdiction, provided the services of such counsel are
substantially designed in writing by you). The Company shall not effect any
settlement of any pending or threatened proceeding in respect of which any
Underwriter is or could have been a party and indemnity could have been sought
hereunder by such Underwriter, unless such settlement includes an unconditional
release of such Underwriter from all liability on claims that are the subject
matter of such proceeding.
Each Underwriter severally agrees to indemnify and hold harmless the
Company, its directors and each of its officers, and each person, if any, who
controls the Company within the meaning of either Section 15 of the Act or
Section 20 of the Exchange Act, to the same extent
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<PAGE>
as the foregoing indemnity from the Company to each Underwriter, but only with
respect to information furnished in writing by such Underwriter through the
Representatives expressly for use in the Registration Statement, the Prospectus,
or any amendment or supplement thereto, or any preliminary prospectus. In case
any action or proceeding shall be brought against the Company or its directors
or officers or any such controlling person, in respect of which indemnity may be
sought against one or more of the several Underwriters, such Underwriters acting
through the Representatives shall have the rights and duties given to the
Company, and the Company or its directors or officers or such controlling person
shall have the rights and duties given to you and the several Underwriters, by
the preceding paragraph.
If the indemnification provided for in this Section 6 is unavailable to an
indemnified party under the first or third paragraph hereof in respect of any
losses, claims, damages or liabilities referred to therein (other than by reason
of such indemnified party's failure to comply with the first sentence of the
second paragraph of this Section 6), then each applicable indemnifying party, in
lieu of indemnifying such indemnified party, shall contribute to the amount paid
or payable by such indemnified party as a result of such losses, claims, damages
or liabilities (i) in such proportion as is appropriate to reflect the relative
benefits received by the Company on the one hand and the Underwriters on the
other in connection with the statements or omissions which resulted in such
losses, claims, damages or liabilities, as well as any other relevant equitable
considerations. The relative benefits received by the Company on the one hand
and the Underwriters on the other in connection with the offering of the Offered
Securities shall be deemed to be in the same proportion as the total net
proceeds from the offering of the Offered Securities received by the Company
bear to the total underwriting discounts received by the Underwriters in
respects thereof. The relative fault of the Company on the one hand and of the
Underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact related to information
supplied by the Company or by the Underwriters through the Representatives and
the parties' relative intent, knowledge, access to information and opportunity
to correct or prevent such statement or omission. The amount paid or payable by
a party as a result of the losses, claims, damages and liabilities referred to
above shall be deemed to include, subject to the limitations set forth in the
second paragraph of this Section 6, any legal or other fees or expenses
reasonably incurred by such party in connection with investigation or defending
any action or claim.
The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 6 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Section 6, the Underwriters shall not be
required to contribute any amount in excess of the amount by which the total
price at which Designated Securities were offered to the public exceeds the
amount of any damages which the Underwriters have otherwise been required to pay
by reason of such untrue or alleged untrue statement or omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Act) shall be entitled to contribution or indemnification from any person
who was not guilty of such fraudulent misrepresentation.
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<PAGE>
The indemnity and contribution agreements contained in this Section 6 and
the representations and warranties of the Company contained in this Agreement
shall remain operative and in full force and effect regardless of (a) any
investigation made by or on behalf of any Underwriter, by or on behalf of any
person controlling or any Underwriter or by or on behalf of the Company, (b)
acceptance of any of the Offered Securities and payment therefor or (c) any
termination of this Agreement or the applicable Pricing Agreement.
7. Conditions of the Obligations of You and the Underwriters: The
obligations of you and the Underwriters hereunder and under the applicable
Pricing Agreement are subject to the following conditions:
(a) at the applicable Closing Date no stop order suspending the
effectiveness of the Registrant Statement shall have been issued and no
proceedings for that purpose shall be pending or threatened by the
Commission; and the Representatives shall have received a certificate,
dated the applicable Closing Date and signed by the Chairman of the Board,
the President, an Executive Vice President or the Senior Vice President --
Finance and Treasurer of the Company (who may, as to threatened
proceedings, rely upon the best of his information and belief), to that
effect and to the effect set forth in clause (g) of this Section 7;
(b) the Representatives shall have received opinions, dated the
applicable Closing Date and reasonably satisfactory to counsel retained by
the Representatives on behalf of the Underwriters, (A) from Messrs. Cole,
Raywid & Braverman or such other special communications counsel for the
Company as may be reasonably satisfactory to the Representatives, (B) from
the General Counsel of the Company to the following effect and covering
such additional matters as the Representatives may reasonably request:
(i) the Company and each of its significant subsidiaries is a
corporation duly organized, validity existing and in good standing
under the laws of the jurisdiction of its incorporation and has the
corporate power and authority to carry on its business as described in
the Prospectus (as amended or supplemented, if applicable) and the
Company has the corporate power and authority to execute and deliver
and perform its obligations under this Agreement and the Pricing
Agreement, and to issue and sell the Offered Securities as
contemplated by this Agreement and the Pricing Agreement;
(ii) the Company and each of its significant subsidiaries is duly
qualified as a foreign corporation and is in good standing in each
jurisdiction in which the failure to so qualify would, in the
aggregate, have a material adverse effect upon the financial
condition, results of operations, business or properties of the
Company and its subsidiaries taken as a whole;
(iii) all corporate proceedings legally required in connection
with the authorization and issuance of, and the sale of, the Offered
Securities by the
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Company in accordance with the terms of this Agreement and the Pricing
Agreement have been taken;
(iv) to the best knowledge of such counsel, there is no legal or
governmental proceeding pending or threatened against the Company or
any of its subsidiaries which is required to be disclosed in the
Prospectus (as amended or supplemented, if applicable) and is not so
disclosed and correctly summarized therein;
(v) to the best knowledge of such counsel, there is no contract
or other document known to such counsel of a character required to be
described in the Prospectus (as amended or supplemented, if
applicable) or to be filed as an exhibit to the Registration Statement
(or to a document incorporated by reference therein) that is not
described or filed as required;
(vi) the execution and delivery of this Agreement and of the
Pricing Agreement, the issuance of the Offered Securities and the
fulfillment of the terms herein and therein contained do not conflict
with, or result in a breach of, or constitute a default under, the
charter or by-laws of the Company or, to the best knowledge of such
counsel, conflict in any material respect with, or result in a
material breach of or constitute a material default under any material
agreement, indenture or other instrument known to such counsel to
which the Company or any of its significant subsidiaries is a party or
by which it is bound, or result in a violation of any law,
administrative regulation or court or governmental decree known to
such counsel applicable to the Company or any of its subsidiaries,
except that such counsel need not express any opinion with respect to
(i) matters opined upon by special communications counsel and Messrs.
Sherman & Howard or (ii) the Blue Sky or securities laws of any
jurisdiction; and
(vii) to the best knowledge of such counsel, neither the
Registration Statement nor the Prospectus, as amended or supplemented,
if applicable (expect as to the financial statements and schedules and
any other financial and statistical data contained or incorporated by
reference in the Registration Statement or Prospectus, as to which no
opinion need be expressed), contained, as of the date of the
Prospectus was first filed with the Commission pursuant to Rule 424,
or contains, as of the applicable Closing Date, any untrue statement
of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein (in the
case of the Prospectus as amended or supplemented, if applicable, in
light of the circumstances under which they were made,) not
misleading.
(C) from Messrs. Sherman & Howard, or from such other special counsel
for the Company as may be reasonably satisfactory to the Representatives,
to the following effect and covering such additional matters as the
Representatives may reasonable request:
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<PAGE>
(i) the execution and delivery of this Agreement and of the Pricing
Agreement, the issuance of the Offered Securities and the fulfillment
of the terms herein and therein contained do not, to the best
knowledge of such counsel, result in a material breach of or
constitute a material default under any material agreement for
borrowed money known to such counsel to which the Company or any of
its significant subsidiaries is a party or by which it is bound; and
(ii) the Company is not an "investment company" within the
meaning of the Investment Company Act of 1940, as amended, and is not
subject to regulation under such Act.
and
(D) from Baker & Botts, L.L.P., special counsel to the Company, or
such other counsel to the Company as may be reasonably satisfactory to the
Representatives, to the following effect and covering such additional
matters as the Representatives may reasonably request:
(i) this Agreement and the applicable Pricing Agreement have been
duly authorized, executed and delivered by the Company;
(ii) if any of the Offered Securities is Common Stock, such
Common Stock has been duly and validly authorized and, when such
Common Stock is issued, signed by the transfer agent and delivered
pursuant to this Agreement and the Pricing Agreement and paid for by
the Underwriters in accordance therewith, such Common Stock will be
duly and validly issued and fully paid and non-assessable;
(iii) if any of the Offered Securities is Preferred Stock, such
Preferred Stock has been duly and validly authorized and, upon the
filing of a Certificate of Designations for such Preferred Stock with
the Delaware Secretary of State and the issuance, the execution by the
transfer agent and delivery of such Preferred Stock against payment
therefor by the Underwriters in accordance with this Agreement and the
Pricing Agreement, such Preferred Stock will be duly and validly
issued and fully paid and non-assessable; if such Preferred Stock is
convertible into Common Stock, the Common Stock initially issuable
upon exercise of such Preferred Stock has been reserved for issuance
upon such conversion and, when issued in accordance with the terms of
the Certificate of Designations upon conversion of such Preferred
Stock, such Common Stock will be duly authorized, validly issued,
fully paid and non-assessable;
(iv) if the Offered Securities include Preferred Stock and
Depositary Shares, the Deposit Agreement has been duly authorized,
executed and delivered by the Company and, assuming due authorization,
execution and delivery by the
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Depositary, constitutes a valid and legally binding agreement of the
Company enforceable in accordance with its terms, subject as to
enforcement to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless of
whether the issue of enforceability is considered in a proceeding at
law or in equity); and the Deposit Agreement conforms to the
description thereof in the Prospectus, as amended or supplemented;
(v) if the Offered Securities include Common Stock Warrants or
Preferred Stock Warrants, the Warrant Agreement has been duly
authorized, executed and delivered by the Company and, assuming due
authorization, execution and delivery by the Warrant Agent,
constitutes a valid and legally binding agreement of the Company
enforceable in accordance with its terms, subject as to enforcement to
bankruptcy, insolvency, reorganization, moratorium and other laws of
general applicability relating to or affecting creditors' rights and
to general equity principles (regardless of whether the issue of
enforceability is considered in a proceeding at law or equity); such
Common Stock Warrants or Preferred Stock Warrants have been duly
authorized and, when such Common Stock Warrants or Preferred Stock
Warrants are issued and delivered against payment therefor by the
Underwriters in accordance with this Agreement and the Pricing
Agreement, and countersigned by the Warrant Agent as provided in the
Warrant Agreement, such Common Stock Warrants or Preferred Stock
Warrants will constitute valid and legally binding obligations of the
Company enforceable in accordance with their terms, subject as to
enforcement to bankruptcy, insolvency, reorganization, moratorium and
other laws of general applicability relating to or affecting
creditors' rights and to general equity principles (regardless of
whether the issue of enforceability is considered in a proceeding at
law or equity); the securities initially issuable upon exercise of
such Common Stock Warrants or Preferred Stock Warrants have been
reserved for issuance upon such exercise and, when issued in
accordance with the terms of the Warrant Agreement against payment of
the exercise price provided for in the Warrant Agreement, such
securities will be duly authorized, validly issued, fully paid and
non-assessable; and the Warrant Agreement conforms as to the
description thereof in the Prospectus, as amended or supplemented;
(vi) the Registration Statement is effective under the Act and,
to the best knowledge of such counsel, no stop order suspending the
effectiveness of the Registration Statement has been issued and no
proceeding for that purpose is pending or threatened by the
Commission; and
(vii) the Offered Securities conform in all material respects as
to legal matters to the descriptions thereof in the Prospectus, as
amended or supplemented.
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In addition, such counsel shall state that "The Registration Statement
and the Prospectus, as amended or supplemented, if applicable (except as to
(x) the financial statements and schedules and any other financial and
statistical data contained or incorporated by reference therein and (y) the
documents incorporated or deemed to be incorporated by reference therein,
as to which no opinion is expressed), complied, as of the date the
Prospectus was first filed with the Commission pursuant to Rule 424, and
comply, as of the date hereof, as to form in all material respects with the
requirements of the Act and the rules and regulations of the Commission
under the Act (the "Rules"). In passing upon the form of such documents,
we have necessarily assumed the correctness and completeness of the
statements made or included therein by the Company and take no
responsibility for the accuracy, completeness or fairness of the statements
contained therein except insofar as such statements relate to the
description of the Offered Securities or relate to us. However, in
connection with the preparation of the Registration Statement and the
Prospectus, we had conferences with certain officers and other
representatives of the Company, and our examination of the Registration
Statement and the Prospectus and our discussions in such conferences did
not disclose to us any information (relying as to the materiality of any
such information primarily upon officers and other representatives of the
Company) which gave us reason to believe that either the Registration
Statement or the Prospectus, as amended or supplemented, if applicable
(except as to (x) the financial statements and schedules and any other
financial and statistical data contained or incorporated by reference
therein and (y) the documents incorporated therein or deemed to be
incorporated by reference therein, as to which no belief is expressed),
contained, as of the date the Prospectus was first filed with the
Commission pursuant to Rule 424, or contains, as of the date hereof, any
untrue statement of a material fact or omitted or omits to state any
material fact required to be stated therein or necessary to make the
statements therein (in the cases of the Prospectus, as amended, or
supplemented, if applicable, in light of the circumstances under which they
were made) not misleading."
In giving such opinions, such counsel may rely (x) as to matters of
fact, to the extent they deem proper, upon certificates of officers of the
Company, public officials and others, and (y) as to matters of law if other
than the law of the United States or Colorado (in the case of Messrs.
Sherman & Howard and General Counsel of the Company) or New York (in the
case of Baker & Botts, L.L.P.), on the opinions of local counsel retained
by them or the Company, provided that such counsel are satisfactory to the
Representatives and counsel retained by the Representatives on behalf of
the Underwriters;
(c) if the Offered Securities include Preferred Stock and Depositary
Shares, the Representatives shall have received on the applicable Closing
Date from counsel to the Depositary an opinion, dated such Closing Date, to
the following effect:
(i) the Depositary has full power, authority and legal right to
execute, deliver and carry out the terms of the Deposit Agreement;
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(ii) the Deposit Agreement has been duly authorized, executed and
delivered by the Depositary and, assuming due authorization, execution
and delivery by the Company, constitutes a valid and legally binding
agreement of the Depositary enforceable in accordance with its terms,
subject as to enforcement to bankruptcy, insolvency, reorganization,
moratorium and other laws of general applicability relating to or
affecting creditors' rights and to general equity principles
(regardless of whether the issue of enforceability is considered in a
proceeding at law or in equity); and
(iii) upon due issuance by the Depositary of Depositary Shares
evidenced by Depositary Receipts in accordance with the terms of the
Deposit Agreement against deposit in accordance with the Deposit
Agreement of validly issued, fully paid and non-assessable shares of
Preferred Stock, such Depositary Shares will be duly and validly
issued and the persons in whose names the Depositary Receipts are
registered shall be entitled to the rights specified therein and in
the Deposit Agreement.
(d) if the Offered Securities include Common Stock Warrants or
Preferred Stock Warrants, the Representatives shall have received on the
applicable Closing Date from counsel to the Warrant Agent, an opinion,
dated such Closing Date, to the following effect:
(i) the Warrant Agent has full power, authority and legal right
to execute, deliver and carry out the terms of the Warrant Agreement;
(ii) the Warrant Agreement has been duly authorized, executed and
delivered by the Warrant Agent and, assuming due authorization,
execution and delivery by the Company, constitutes a valid and
legally binding agreement of the Warrant Agent enforceable in
accordance with its terms, subject as to enforcement to bankruptcy,
insolvency, reorganization, moratorium and other laws of general
applicability relating to or affecting creditors' rights and to
general equity principles (regardless of whether the issue of
enforceability is considered in a proceeding at law or in equity); and
(iii) upon the countersignature and due issuance by the Warrant
Agent of the Common Stock Warrants or the Preferred Stock Warrants in
accordance with the terms of the Warrant Agreement, such Warrants will
be duly and validly issued and the persons in whose names such
Warrants are registered shall be entitled to the rights specified
therein and in the Warrant Agreement.
(e) the Representatives shall have received on the applicable Closing
Date from counsel retained by the Representatives on behalf of the
Underwriters an opinion with respect to the Offered Securities, the
Registration Statement and the Prospectus in the form customarily given by
such firm, including an opinion to the effect that the
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Registration Statement and the Prospectus, as amended or supplemented, if
applicable (except as to (x) the financial statements and schedules and any
other financial and statistical data contained or incorporated by reference
therein, and (y) the documents incorporated or deemed to be incorporated by
reference therein, as to which no opinion need be expressed) comply as to
form in all material respects with the Act;
(f) on the applicable Closing Date the Representatives shall have
received a letter addressed to the Representatives from KPMG Peat Marwick
LLP, independent auditors for the Company, reasonably satisfactory to the
Representatives;
(g) the representations and warranties of the Company in this
Agreement shall be true and correct on and as of the applicable Closing
Date; the Company shall have complied with all agreements and satisfied all
conditions on its part to be performed or satisfied at or prior to the
applicable Closing Date; and except as reflected in or contemplated by the
Registration Statement and the Prospectus, since the respective dates as of
which information is given in the Registration Statement and the
Prospectus, there shall not have been, at the applicable Closing Date, any
material adverse change in the condition (financial or otherwise),
business, prospects or results of operations of the Company and its
subsidiaries, considered as a whole; and
(h) subsequent to the date of the applicable Pricing Agreement, there
shall not have occurred any change, or any development involving a
prospective change, in or affecting particularly the business, prospects or
financial affairs of the Company and its subsidiaries, considered as a
whole which, in the reasonable judgment of the Representatives, is so
material and adverse that it would be impracticable to proceed with the
public offering or delivery of the Offered Securities on the terms and in
the manner contemplated by the Prospectus.
8. Termination of Pricing Agreement: The obligation of the Underwriters
to purchase the Offered Securities may be terminated at any time prior to the
applicable Closing Date by notice to the Company from the Representatives,
without liability on the part of the Underwriters to the Company, if, on or
prior to such date (i) additional material governmental restrictions, not in
force and effect on the date of the applicable Pricing Agreement, shall have
been imposed upon trading in securities generally, or minimum or maximum prices
shall have been generally established on the New York Stock Exchange or on the
American Stock Exchange, or trading in securities generally shall have been
suspended on either such Exchange or trading in securities of the Company of the
same class as the Offered Securities in the over-the-counter market shall have
been suspended or a general banking moratorium shall have been established by
Federal or New York authorities, or (ii) a war involving the United States of
America or other national calamity shall have occurred or shall have accelerated
to such an extent as to affect adversely the marketability of the Offered
Securities.
9. Default by One or More of the Underwriters. If one or more of the
Underwriters shall fail on the applicable Closing Date to purchase the Firm
Securities or Optional Securities,
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as the case may be, that it or they are obligated to purchase hereunder (the
"Defaulted Securities"), the Representatives shall have the right, within 24
hours thereafter, to make arrangements for one or more of the non-defaulting
Underwriters, or any substitute underwriters, to purchase all, but not less than
all, of the Defaulted Securities in such amounts as may be approved by the
Representatives and upon the terms herein set forth; if, however, the
Representatives have not completed such arrangements within such 24-hour period,
then:
(a) if the amount of Defaulted Securities does not exceed 10% of the
aggregate amount of the Firm Securities or the Optional Securities, as the
case may be, the non-defaulting Underwriters shall be obligated to purchase
the full amount thereof in the proportions that their respective
underwriting obligations hereunder bear to the underwriting obligations of
all non-defaulting Underwriters, or
(b) if the amount of Defaulted Securities exceeds 10% of the aggregate
amount of Firm Securities or Optional Securities, as the case may be, the
Company shall be entitled to an additional 24-hour period to find one or
more substitute underwriters satisfactory to the Representatives in their
reasonable discretion to purchase such Defaulted Securities.
In the event of any such default either the Representatives or the Company
shall have the right to postpone the applicable Closing Date for a period not
exceeding seven days in order to effect any required changes in the Registration
Statement or Prospectus or in any other documents or arrangements relating to
the purchase of the Offered Securities.
If the amount of Defaulted Securities exceeds 10% of the aggregate amount
of the Firm Securities or the Optional Securities, and neither the
Representatives nor the Company make arrangements pursuant to this Section 9
within the period stated for the purchase of the Defaulted Securities, the
applicable Pricing Agreement shall terminate with respect to such Firm
Securities or Optional Securities, as the case may be, without liability on the
part of any non-defaulting Underwriter to the Company except as provided in
Section 6.
No action taken pursuant to this Section 9 shall relieve any defaulting
Underwriter from liability in respect of its default.
A substitute underwriter hereunder shall be an Underwriter for all purposes
of this Agreement and the applicable Pricing Agreement.
10. Miscellaneous: Notice given pursuant to any of the provisions of this
Agreement or the applicable Pricing Agreement shall be in writing and shall be
mailed or delivered (a) to the Company at its office, Terrace Tower II, 5619 DTC
Parkway, Englewood, Colorado 80111-3000, attention: Donne F. Fisher, Executive
Vice President (Principal Financial Officer), or (b) to you at the address of
such Representative specified in the applicable Pricing Agreement. Any notice
under Section 8 hereof may be telex or telephone, but if so made shall be
subsequently confirmed in writing.
-20-
<PAGE>
This Agreement and the applicable Pricing Agreement have been and are made
solely for the benefit of the Underwriters and the Company and of the
controlling persons, directors and officers referred to in Section 6 hereof, and
their respective successors and assigns, and no other person shall acquire or
have any right under or by virtue of this Agreement or the applicable Pricing
Agreement. The term "successors and assigns" as used in this Agreement shall
not include a purchaser, as such purchaser, of Offered Securities from any
Underwriter.
This Agreement and the applicable Pricing Agreement shall be governed by
and construed in accordance with the internal laws of the State of New York.
-21-
<PAGE>
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
TELE-COMMUNICATIONS, INC.
By:/s/ Stephen M. Brett
------------------------------------
Confirmed as of the date
first above mentioned
MORGAN STANLEY & CO. INCORPORATED
By:/s/ Candace Koederitz
-------------------------------------
Title:
-22-
<PAGE>
EXHIBIT 1.2
PRICING AGREEMENT
-----------------
February 3, 1995
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
28th Floor
New York, New York 10020
Dear Sirs:
Tele-Communications, Inc., a Delaware corporation (the "Company"),
proposes, subject to the terms and conditions stated herein and in the
Underwriting Agreement dated February 3, 1995 (the "Underwriting Agreement"), to
issue and sell to the Underwriter named in Exhibit A hereto (the "Underwriter")
certain securities (the "Offered Securities") described in Exhibit B hereto.
Each of the provisions of the Underwriting Agreement is incorporated herein
by reference in its entirety, and shall be deemed to be a part of this Pricing
Agreement to the same extent as if such provisions had been set forth in full
herein. Each of the representations and warranties set forth in the
Underwriting Agreement shall be deemed to have been made at and as of the date
of this Pricing Agreement, except that each representation and warranty with
respect to the Prospectus shall be deemed to be a representation and warranty as
of the date of the Underwriting Agreement in relation to the Prospectus (as
therein defined), and also a representation and warranty as of the date of this
Pricing Agreement in relation to the Prospectus as amended or supplemented
relating to the Offered Securities which are the subject of this Pricing
Agreement. Each reference to the Representatives herein and in the provisions
of the Underwriting Agreement so incorporated by reference shall be deemed to
refer to you. Unless otherwise defined herein, terms defined in the
Underwriting Agreement are used herein as therein defined.
An amendment to the Registration Statement, or a supplement to the
Prospectus, as the case may be, relating to the Offered Securities, in the form
heretofore delivered to you is now proposed to be filed with the Commission.
Subject to the terms and conditions set forth herein and the Underwriting
Agreement incorporated herein by reference, the Company agrees to sell to the
Underwriter, and the Underwriter agrees, to purchase from the Company, at a
purchase price to the Underwriter set forth in Exhibit A hereto, the number of
Firm Securities set forth opposite the name of such Underwriter in Exhibit A
hereto. If and to the extent that the Underwriter exercises the election
Annex I-1
<PAGE>
to purchase Optional Securities as provided below, the Company agrees to sell to
the Underwriter, and the Underwriter agrees to purchase from the Company at the
purchase price to the Underwriters set forth in Exhibit A hereto, that portion
of the number of Optional Securities as to which such election has been
exercised.
The Company hereby grants to the Underwriter, subject to the terms set
forth herein and in the Underwriting Agreement, the right to purchase at its
election up to the number of Optional Securities set forth opposite the name of
such Underwriter in Exhibit A hereto on the terms referred to in the paragraph
above for the sole purpose of covering over-allotments in the sale of the Firm
Securities.
The Underwriter (i) has not offered or sold, and will not offer or sell, in
the United Kingdom, by means of any document, any Shares other than to persons
whose ordinary business it is to buy or sell shares or debentures, whether as
principal or agent (except under circumstances which do not constitute an offer
to the public within the meaning of the Companies Act 1985); (ii) has complied
and will comply with all applicable provisions of the Financial Services Act
1986 with respect to anything done by it in relation to the Shares in, from or
otherwise involving the United Kingdom; and (iii) has only issued or passed on,
and will only issue and pass on to any person in the United Kingdom, any
document received by it in connection with the issue of the Shares if that
person is of a kind described in Article 9(3) of the Financial Services Act 1986
(Investment Advertisements) (Exemptions) Order 1988 or is a person to whom the
document may otherwise lawfully be issued or passed on.
During a period of 90 days from the date of this Pricing Agreement (the
"Lockup Period"), the Company will not, without the prior written consent of the
Underwriter, directly or indirectly sell, offer to sell or otherwise dispose of
any shares of Common Stock (other than the Offered Securities to be sold to the
Underwriter as specified herein), or securities convertible into shares of
Common Stock ("Convertible Securities"), by any of the following means: (i) in
a primary offering registered under Section 5 of the Securities Act; (ii)
through the mailing of a proxy statement/prospectus (including in a Registration
Statement on Form S-4) relating to a transaction of a type referred to in Rule
145 of the Commission; or (iii) in a secondary offering registered under
Section 5 of the Securities Act if the selling stockholders received their
shares of Common Stock or Convertible Securities in a transaction that was
consummated during the Lockup Period; provided, however, notwithstanding the
foregoing, during the Lock-up Period the Company may sell, offer to sell or
otherwise dispose of, free of the restrictions of this paragraph, (x) shares of
Common Stock or Convertible Securities (or both) offered or sold to directors,
officers and employees of the Company pursuant to options in existence on the
date of this Pricing Agreement or employee benefit plans or as executive
compensation and (y) such number of shares of Common Stock and Convertible
Securities as may be required to consummate the transactions described in the
letter, dated the date of this Pricing Agreement, delivered by the Company to
the Underwriter.
Delivery and payment for the Firm Securities shall be made at 10:00 a.m.
New York time on February 10, 1995 (the "Closing Date") at the office of Baker &
Botts L.L.P., 885 Third
Annex I-2
<PAGE>
Avenue, Suite 1900, New York, New York 10022. The Closing Date and the place of
delivery of and payment for the Firm Securities may be varied by agreement
between the Underwriter and the Company.
Any election to purchase Optional Securities may be exercised by written
notice from the Underwriter to the Company given within a period of 30 days
after the date of this Agreement, setting forth the aggregate number of Optional
Securities to be purchased, the number of Optional Securities to be purchased by
the Underwriter, and the date on which such Optional Securities are to be
delivered as determined by the Underwriter, but in no event earlier than the
Closing Date.
If the foregoing is in accordance with your understanding, please sign and
return to us counterparts hereof, and upon acceptance hereof by you, this
Pricing Agreement, including the provisions of the Underwriting Agreement
incorporated herein by reference, shall constitute a binding agreement between
the Underwriter and the Company.
Very truly yours,
TELE-COMMUNICATIONS, INC.
By:/s/ Stephen M. Brett
--------------------------------
Confirmed as of the date
first above mentioned
MORGAN STANLEY & CO. INCORPORATED
By:/s/ Candace Koederitz
--------------------------------
Title:
Annex I-3
<PAGE>
EXHIBIT A
TO A PRICING AGREEMENT DATED
FEBRUARY 3, 1995
<TABLE>
<CAPTION>
NUMBER OF OFFERED
SECURITIES
-----------------------
FIRM OPTIONAL /1/
---------- -----------
UNDERWRITER CLASS A COMMON STOCK
- ----------------------------------------- -----------------------
<S> <C> <C>
Morgan Stanley & Co. Incorporated........ 19,550,000 0
Total.......................... 19,550,000 0
</TABLE>
Names and Addresses of Representatives:
- -----------------------------------------
Morgan Stanley & Co. Incorporated
1251 Avenue of the Americas
28th Floor
New York, New York 10020
________________________
/1/ Maximum Number
A-1
<PAGE>
EXHIBIT B
To a Pricing Agreement dated
February 3, 1995
OFFERED SECURITIES
COMMON STOCK:
- ------------
Title: Class A Common Stock, $1.00 par value per share
Voting Rights: One vote per share
Purchase Price (includes accrued dividends, if any):
(1) Firm: $20.50
(2) Optional: $20.50
Commission: $.50 per share
Initial Public Offering Price (or method of calculation): $21.00
Dividend: None
Conversion Rate: None
Record Dates: N/A
Other Terms: N/A
B-1
<PAGE>
EXHIBIT 5.1
-----------
February 10, 1995
Tele-Communications, Inc.
Terrace Tower II
5619 DTC Parkway
Englewood, Colorado 80111-3000
Gentlemen:
Reference is made to the registration statement on Form S-3 (File No.
33-56271) (the "Registration Statement"), filed by Tele-Communications, Inc., a
Delaware corporation (the "Company"), in connection with the proposed offering
from time to time by the Company of (i) shares of the Company's Class A Common
Stock, $1.00 par value per share ("Class A Common Stock"), Class B Common Stock,
$1.00 par value per share and/or any class of common stock that may hereafter be
created through an amendment to the Company's Restated Certificate of
Incorporation; (ii) shares of the Company's Series Preferred Stock, $.01 par
value per share, which may be issued in the form of depositary shares evidenced
by depositary receipts, and (iii) warrants to purchase common stock or preferred
stock of the Company, or any combination of the foregoing, at an aggregate
initial offering price not to exceed $575,000,000.
On February 3, 1995, the Company entered into an underwriting
agreement (the "Underwriting Agreement") and a pricing agreement (the "Pricing
Agreement") with Morgan Stanley & Co. Incorporated (the "Underwriter") pursuant
to which the Company agreed to sell to the Underwriter, subject to the
conditions stated in the Underwriting Agreement, 19,550,000 shares of Class A
Common Stock (the "Shares") at a purchase price set forth on Exhibit A to the
Pricing Agreement. You have asked us to pass upon for you certain legal matters
in connection with the Shares.
In connection therewith, we have examined, among other things,
originals, certified copies or copies otherwise identified to our satisfaction
as being copies of originals, of the Restated Certificate of Incorporation and
By-Laws of the Company, each as amended; resolutions of the proceedings of the
Company's Board of Directors, including committees thereof, with respect to the
filing of the Registration Statement and related matters; and such other
documents, records, certificates of public officials and questions of law as we
deemed necessary or appropriate for the purpose of this opinion. In rendering
this opinion, we have relied, to the extent we deem such reliance appropriate,
on certificates of officers of the Company as to factual matters. We have
assumed the authenticity of all documents submitted to us as originals and the
conformity to authentic original documents of all documents submitted to us as
certified,
<PAGE>
Tele-Communications, Inc.
Page 2
conformed or reproductive copies. We have further assumed that the Underwriting
Agreement and the Pricing Agreement have been duly and validly authorized,
executed and delivered by, and constitute the valid and binding obligation of
the Underwriter.
Based upon the foregoing, we are of the opinion that:
The Shares have been duly and validly authorized and, when issued,
signed by the transfer agent and delivered pursuant to the Underwriting
Agreement and the Pricing Agreement and paid for by the Underwriter in
accordance therewith, such Shares will be duly and validly issued and fully paid
and nonassessable.
We hereby consent to the reference to us under the heading "Validity
of the Shares" in the Prospectus Supplement, dated February 3, 1995 to the
Prospectus, dated February 3, 1995 forming a part of the Registration Statement
and to the incorporation of this opinion by reference into the Registration
Statement. In giving the foregoing consent, we do not admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission promulgated thereunder.
Jerome H. Kern, a partner of Baker & Botts, L.L.P., is a director of
the Company.
Very truly yours,
BAKER & BOTTS, L.L.P.
