<PAGE>
As filed with the Securities and Exchange Commission on January 5, 1995
Registration No. __________
================================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
-------------
Form S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------------
TELE-COMMUNICATIONS, INC.
(Exact name of Registrant as specified in its charter)
Delaware 84-1260157
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
5619 DTC Parkway
Englewood, Colorado 80111
(303) 267-5500
(Address, including zip code, and telephone number, including area code, of
Registrant's principal executive offices)
---------------------------------
Stephen M. Brett, Esq.
Tele-Communications, Inc.
Terrace Tower II
5619 DTC Parkway
Englewood, Colorado 80111
(303) 267-5500
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
---------------------------------
Copy to:
Charles Y. Tanabe, Esq.
Sherman & Howard L.L.C.
633 Seventeenth Street, Suite 3000
Denver, Colorado 80202
(303) 297-2900
---------------------------------
Approximate date of commencement of proposed sale to public: From time to time
after the effective
date of this Registration Statement as determined by the Selling Stockholder.
---------------------------------
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, 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]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
================================================================================
Proposed Proposed
Maximum Maximum
Title of Each Class Amount to Offering Aggregate
of Securities be Price Per Offering Amount of
to be Registered Registered Share(1) Price(1) Registration Fee
- -------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Class A Common Stock, 13,523,000
$1.00 par value Shares $21.5625 $291,588,591 $100,548
=====================================================================================
</TABLE>
(1) Estimated solely for purposes of determining the registration fee in
accordance with Rule 457(c); based upon the average of the high and low
prices of the Registrant's Class A Common Stock, as reported by NASDAQ, on
January 3, 1995.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant shall
file a further amendment which specifically states that this Registration
Statement shall thereafter become effective in accordance with Section 8(a) of
the Securities Act of 1933 or until this Registration Statement shall become
effective on such date as the Commission, acting pursuant to said Section 8(a),
may determine.
================================================================================
<PAGE>
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
+ INFORMATION CONTAINED HEREIN IS SUBJECT TO COMPLETION OR AMENDMENT. A +
+ REGISTRATION STATEMENT RELATING TO THESE SECURITIES HAS BEEN FILED WITH THE +
+ SECURITIES AND EXCHANGE COMMISSION. THESE SECURITIES MAY NOT BE SOLD NOR +
+ OFFERS TO BUY BE ACCEPTED PRIOR TO THE TIME THE REGISTRATION STATEMENT +
+ BECOMES EFFECTIVE. THIS PROSPECTUS SHALL NOT CONSTITUTE AN OFFER TO SELL +
+ OR THE SOLICITATION OF AN OFFER TO BUY NOR SHALL THERE BY ANY SALE OF THESE +
+ SECURITIES IN ANY STATE IN WHICH SUCH OFFER, SOLICITATION OR SALE WOULD BE +
+ UNLAWFUL PRIOR TO REGISTRATION OR QUALIFICATION UNDER THE SECURITIES LAWS +
+ OF ANY STATE. +
++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++
Subject to Completion, dated ____________, 1995
PROSPECTUS
- ----------
13,523,000 Shares
TELE-COMMUNICATIONS,INC.
Class A Common Stock
($1.00 Par Value)
--------------------
This Prospectus relates to 13,523,000 shares (the "Shares") of Class A
Common Stock, $1.00 par value per share (the "Class A Common Stock"), of Tele-
Communications, Inc., a Delaware corporation ("TCI" or the "Company"), to be
offered and sold from time to time by a certain stockholder (the "Selling
Stockholder") referred to in this Prospectus. The Company has been advised that
the Shares may be sold through underwriters or dealers, through brokers or other
agents, or directly to one or more purchasers, at market prices prevailing at
the time of sale or at prices otherwise negotiated. To the extent required, the
number of Shares to be sold, the purchase price, the name of any broker-dealer,
and any applicable commissions, discounts or other items constituting
compensation to such broker-dealers with respect to a particular offering will
be set forth in a supplement or supplements to this Prospectus (each, a
"Prospectus Supplement"). The aggregate proceeds to the Selling Stockholder
from the sale of the Shares so offered will be the purchase price of the Shares
sold less the aggregate commissions, discounts and other compensation, if any,
paid to broker-dealers and other expenses of the offering and sale of the
Shares. See "Plan of Distribution." The Company knows of no selling
arrangement between any broker-dealer and the Selling Stockholder. The Company
will not receive any of the proceeds from the sale of the Shares but will bear
certain of the expenses thereof. See "Plan of Distribution."
The shares of the Company's Class A Common Stock and the Company's
Class B Common Stock, par value $1.00 per share (the "Class B Common Stock"),
are traded in the over-the-counter market on the Nasdaq National Market under
the symbols TCOMA and TCOMB, respectively. The Class A Common Stock and the
Class B Common Stock are identical in all respects except that each share of
Class B Common Stock has ten votes per share and each share of Class A Common
Stock has one vote per share. Each share of Class B Common Stock is
convertible, at the option of the holder, into one share of Class A Common
Stock. The Class A Common Stock is not convertible. On January 4, 1995 the
closing sale price of the Class A Common Stock as reported on the Nasdaq
National Market was $21 7/8 per share.
The Selling Stockholder and any broker-dealers that participate with
the Selling Stockholder in the distribution of any of the Shares may be deemed
to be "underwriters" within the meaning of the Securities Act of 1933, as
amended, and any discount or commission received by them and any profit on the
resale of the Shares purchased by them may be deemed to be underwriting
commissions or discounts under such Act. The Company has agreed to indemnify
the Selling Stockholder against certain liabilities that may be incurred in
connection with the sale of Shares under this Prospectus. See "Plan of
Distribution."
--------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS OR ANY PROSPECTUS SUPPLEMENT. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
--------------------
_____________, 1995
<PAGE>
The Company was incorporated in 1994 under the name "TCI/Liberty
Holding Company" for the purpose of combining the Company's predecessor, Tele-
Communications, Inc. (renamed "TCI Communications, Inc." and referred to herein
as "TCIC"), and Liberty Media Corporation ("Liberty"). On August 4, 1994 the
mergers (the "TCI/Liberty Combination") of TCIC and Liberty with separate wholly
owned subsidiaries of the Company were consummated and each of TCIC and Liberty
became wholly owned subsidiaries of the Company. In connection with the
TCI/Liberty Combination, the Company changed its name to Tele-Communications,
Inc. and TCIC changed its name to TCI Communications, Inc. Unless the context
indicates otherwise, as used in this Prospectus the term "Company" means, on and
after August 4, 1994, Tele-Communications, Inc. (formerly named "TCI/Liberty
Holding Company") and, before August 4, 1994, TCIC (formerly named "Tele-
Communications, Inc."), and their respective consolidated subsidiaries.
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports, proxy statements, information statements and
other information with the Securities and Exchange Commission (the
"Commission"). Such reports, proxy statements, information statements and other
information can be inspected and copied at the public reference facilities
maintained by the Commission at Room 1024, 450 Fifth Street, N.W., Judiciary
Plaza, Washington, D.C. 20549 and at its regional offices at the following
addresses: 7 World Trade Center, Suite 1300, New York, New York 10048 and
Northwestern Atrium Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661-2511. Copies of such materials can be obtained from the Public
Reference Section of the Commission at 450 Fifth Street, N.W., Room 1024,
Judiciary Plaza, Washington, D.C. 20549 at prescribed rates.
The Company has filed with the Commission a Registration Statement on
Form S-3 (together with all amendments and exhibits referred to as the
"Registration Statement") under the Securities Act of 1933, as amended (the
"Securities Act"), with respect to the Shares. This Prospectus does not include
all of the information set forth in the Registration Statement, certain parts of
which are omitted, as permitted by the rules and regulations of the Commission.
For further information pertaining to the Shares, reference is made to the
Registration Statement. The Registration Statement, including any amendments,
schedules and exhibits filed or incorporated by reference as a part thereof, is
available for inspection and copying as set forth above. Statements contained
in this Prospectus or in any document incorporated herein by reference as to the
contents of any contract or other document referred to herein or therein are not
necessarily complete and in each instance reference is made to the copy of such
contract or other document filed as an exhibit to the Registration Statement or
such other document, and each such statement shall be deemed qualified in its
entirety by such reference.
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The following documents previously filed by the Company with the
Commission under the Exchange Act are incorporated herein by reference:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1993, as amended by Form 10-K/A (amendment no. 1)
(Commission File No. 0-5550);
(b) The Company's Quarterly Report on Form 10-Q for the quarter
ended March 31, 1994, as amended by Form 10-Q/A (amendment no. 1)
(Commission File No. 0-5550); the Company's Quarterly Report on Form
10-Q for the quarter ended June 30, 1994 (Commission File No. 0-5550);
and the Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1994 as amended by Form 10-Q/A (amendment no. 1) and
Form 10-Q/A (amendment no. 2) (Commission File No. 0-20421);
(c) The Company's Current Reports on Form 8-K dated February 15,
1994, February 25, 1994, April 6, 1994 and May 27, 1994, as amended by
Form 8-K/A (amendment no. 1) (Commission File No. 0-5550); and
(d) The Company's Current Reports on Form 8-K dated August 5,
1994, August 18, 1994, August 26, 1994, October 27, 1994 and December
2, 1994, as amended by Form 8-K/A (amendment no. 1) (Commission File
No. 0-20421).
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act after the date of this Prospectus and prior to
the termination of the offering of the Shares described in this Prospectus shall
be deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes hereof to the extent that a statement contained herein (or in any
other subsequently filed document that is or is deemed to be incorporated by
reference herein) modifies or supersedes such previous statement. Any statement
so modified or superseded shall not be deemed to constitute a part hereof except
as so modified or superseded.
<PAGE>
All information appearing in this Prospectus is qualified in its
entirety by the information and financial statements (including notes thereto)
appearing in the documents incorporated herein by reference.
The Company will provide without charge to each person to whom a
Prospectus is delivered, on the written or oral request of such person, a copy
of any and all of the documents incorporated by reference in this Prospectus
(other than exhibits to such documents unless such exhibits are specifically
incorporated by reference into the documents that are incorporated by reference
in this Prospectus). Written or oral requests for such copies should be
directed to Stephen M. Brett, Executive Vice President and General Counsel,
Tele-Communications, Inc., Terrace Tower II, 5619 DTC Parkway, Englewood,
Colorado 80111 (Telephone (303) 267-5500).
CERTAIN CONSIDERATIONS
The following factors, among others, should be considered carefully
before making an investment decision with respect to the Shares.
Losses. The Company incurred a net loss in each of the last three
fiscal years and losses from continuing operations in the fiscal years ended
December 31, 1993 and December 31, 1991. The Company had net earnings for the
nine-month periods ended September 30, 1994 and 1993. Notwithstanding the
losses it has incurred, the Company has been able to, and expects to continue to
be able to, satisfy its debt service and other obligations as and when they
become due. The Company's Operating Cash Flow (operating income before
depreciation, amortization and other non-cash credits or charges) ($1,858
million, $1,637 million and $1,430 million for the years ended December 31,
1993, 1992 and 1991, respectively, and $1,339 million and $1,409 million for the
nine-month periods ended September 30, 1994 and 1993, respectively) has
historically been sufficient to cover its interest expense ($731 million, $718
million and $826 million for the years ended December 31, 1993, 1992 and 1991,
respectively, and $568 million and $549 million for the nine-month periods ended
September 30, 1994 and 1993, respectively). The Company's interest coverage
ratio for the years ended December 31, 1993, 1992 and 1991 was 254%, 228%, and
173%, respectively, and for the nine months ended September 30, 1994 and 1993
was 236% and 257%, respectively. Operating Cash Flow is a measure of value and
borrowing capacity within the cable television industry and is not intended to
be a substitute for cash flows provided by operating activities, a measure of
performance prepared in accordance with generally accepted accounting
principles, and should not be relied upon as such.
THE COMPANY
The Company, through its subsidiaries and affiliates, is principally
engaged in the construction, acquisition, ownership and operation of cable
television systems and the provision of satellite- delivered video
entertainment, information and home shopping programming services to various
video distribution media, principally cable television systems. The Company
believes that measured by the number of basic subscribers, it is the largest
provider of cable television services in the United States. The Company also has
investments in cable and telecommunications operations and
<PAGE>
television programming in certain international markets. The Company also has
investments in companies and joint ventures involved in developing and providing
programming for new television and telecommunications technologies. The
Company is a Delaware corporation and its executive offices are located at
Terrace Tower II, 5619 DTC Parkway, Englewood, Colorado 80111-3000; telephone
(303) 267-5500.
DESCRIPTION OF CAPITAL STOCK
The Company is authorized to issue 1,100,000,000 shares of Class A
Common Stock and 150,000,000 shares of Class B Common Stock. In addition, it is
authorized to issue up to 12,375,096 shares of Preferred Stock, par value $.01
per share ("Preferred Stock"), divided into 700,000 shares of Class A Preferred
Stock, par value $.01 per share ("Class A Preferred Stock"), 1,675,096 shares of
Class B 6% Cumulative Redeemable Exchangeable Junior Preferred Stock, par value
$.01 per share ("Class B Preferred Stock"), and 10,000,000 shares of Series
Preferred Stock, par value $.01 per share (the "Series Preferred Stock"). The
following summary of certain provisions of the Company's Restated Certificate of
Incorporation and Bylaws does not purport to be complete and is subject to, and
qualified in its entirety by reference to, all provisions of such Restated
Certificate of Incorporation and Bylaws, copies of which are filed as exhibits
to this Registration Statement.
Common Stock
Each share of Class A Common Stock has one vote and each share of
Class B Common Stock has 10 votes per share. The Class A and Class B Common
Stock are otherwise identical in all respects, except that each share of Class B
Common Stock is convertible into one share of Class A Common Stock at the option
of the holder. A number of shares of Class A Common Stock equal to the number of
shares of Class B Common Stock outstanding from time to time are set aside and
reserved for issuance upon conversion of shares of Class B Common Stock. The
Class A Common Stock is not convertible into Class B Common Stock. Subject to
the preferential rights of holders of any then outstanding Preferred Stock, the
holders of the Class A and Class B Common Stock are entitled to receive
dividends when and as declared by the Board of Directors out of funds legally
available for such payment. Holders of Class A and Class B Common Stock have no
preemptive rights to purchase additional shares. Subject to the preferential
rights of holders of any then outstanding Preferred Stock, the holders of Class
A and Class B Common Stock are entitled to share ratably in the assets of the
Company available for distribution to stockholders in the event of the Company's
liquidation, dissolution or winding up.
The holders of the Class A and Class B Common Stock vote as one class
for the election of directors and have no cumulative voting rights in the
election of directors. The Company's Restated Certificate of Incorporation also
provides that the Board of Directors be divided into three classes of
approximately equal size, with one class to be elected for a three-year term at
each annual meeting of stockholders.
The Restated Certificate of Incorporation may be amended or repealed
only upon a vote of the holders of 66 2/3% of the total voting power of the
outstanding Class A and Class B Common Stock and any then outstanding Preferred
Stock entitled to vote with the Class A and Class B Common Stock generally on
matters submitted to stockholders for a vote (collectively "Voting Stock"),
voting as one class, and the Company's Bylaws may be amended only upon the
affirmative vote of at least 75% of the members of the Board of Directors, or by
<PAGE>
a vote of holders of 66 2/3% of the total voting power of the outstanding Voting
Stock, voting as a single class. In addition, the Restated Certificate of
Incorporation provides that, subject to the rights of the holders of any class
or series of Preferred Stock, a vote of the holders of 66 2/3% of the total
voting power of the outstanding Voting Stock, voting as a single class, is
required to remove directors (who may be removed only for cause) and to approve
dissolution and certain mergers, consolidations, sales of assets and similar
transactions. As of the date of this Prospectus, the Class A and Class B Common
Stock and the Class C Preferred Stock (as defined below) constitute the only
"Voting Stock" of the Company.
Class Preferred Stock
Class A Preferred Stock. The Company is authorized to issue 700,000
shares of Class A Preferred Stock, of which 592,798 were issued and outstanding
as of the date of this Prospectus and all of which were held by a wholly-owned
subsidiary of the Company. The dividend, liquidation and redemption features of
the Class A Preferred Stock, each of which is discussed below, are determined by
reference to the liquidation value of the Class A Preferred Stock, which as of
any date of determination will be equal, on a per share basis, to the sum of (i)
$322.84, plus (ii) all dividends accrued on such share through the dividend
payment date on or immediately preceding such date of determination to the
extent not paid on or before such date, plus (iii), for purposes of determining
liquidation and redemption payments, all unpaid dividends accrued on the sum of
clauses (i) and (ii) above, to such date of determination.
The holders of Class A Preferred Stock are entitled to receive
preferential cumulative cash dividends when and as declared by the Board of
Directors out of unrestricted funds legally available therefor. Dividends accrue
cumulatively at an annual rate of 9 3/8% of the liquidation value per share,
whether or not such dividends are declared or funds are legally or contractually
available for payment of dividends. Dividends not paid on any dividend payment
date are added to the liquidation value on such date and remain a part thereof
until such dividends and all dividends accrued thereon are paid in full.
Upon the dissolution, liquidation or winding up of the Company,
holders of Class A Preferred Stock will be entitled to receive from the assets
of the Company available for distribution to stockholders an amount in cash or
property or a combination thereof, per share, equal to the liquidation value.
The Class A Preferred Stock is subject to optional redemption at any
time by the Company, in whole or in part, and to mandatory redemption by the
Company on the twelfth anniversary of the issue date, in each case at a
redemption price per share equal to the liquidation value of the Class A
Preferred Stock.
Class B Preferred Stock. The Company is authorized to issue 1,675,096
shares of Class B Preferred Stock, all of which were issued and outstanding as
of the date of this Prospectus. The holders of Class B Preferred Stock are
entitled to receive preferential cumulative dividends, when and as declared by
the Board of Directors out of unrestricted funds legally available therefor.
Dividends accrue cumulatively (but without compounding) at an annual rate of 6%
of the stated liquidation value of $100 per share (the "Stated Liquidation
Value"), whether or not such dividends are declared or funds are legally
available for the payment of dividends. Accrued dividends are payable annually
and, in the sole discretion of the Board of Directors, may be declared and paid
in cash, in shares of Class A Common Stock or in any combination of the
<PAGE>
foregoing. Accrued dividends not paid as provided above on any dividend payment
date will accumulate and such accumulated unpaid dividends may be declared and
paid in cash, shares of Class A Common Stock or any combination thereof at any
time without reference to any regular dividend payment date, to holders of
record of Class B Preferred Stock as of a special record date fixed by the Board
of Directors.
Upon the liquidation, dissolution or winding up of the Company, the
holders of Class B Preferred Stock will be entitled to receive from the assets
of the Company available for distribution to stockholders an amount in cash or
property or a combination thereof, per share, equal to the Stated Liquidation
Value thereof, plus all accumulated and accrued but unpaid dividends thereon to
the date of payment.
The Class B Preferred Stock is redeemable at any time at the option of
the Company, in whole or in part, for a redemption price per share payable in
cash equal to the Stated Liquidation Value thereof, plus all accumulated and
accrued but unpaid dividends thereon to and including the redemption date.
The Class B Preferred Stock is exchangeable at the option of the
Company in whole but not in part at any time for junior subordinated debt
securities of the Company ("Junior Exchange Notes"). If the Company exercises
its optional exchange right, each holder of outstanding shares of Class B
Preferred Stock will be entitled to receive in exchange therefor newly issued
Junior Exchange Notes of a series authorized and established for the purpose of
such exchange, the aggregate principal amount of which will be equal to the
aggregate Stated Liquidation Value of the shares of Class B Preferred Stock so
exchanged by such holder, plus all accumulated and accrued but unpaid dividends
thereon to and including the exchange date. The Junior Exchange Notes will
mature on the fifteenth anniversary of the date of issuance and will be subject
to earlier redemption at the option of the Company, in whole or in part, for a
redemption price equal to the principal amount thereof plus accrued but unpaid
interest. Interest will accrue, and be payable annually, on the principal amount
of the Junior Exchange Notes at a rate per annum to be determined prior to
issuance by adding a spread of 215 basis points to the "Fifteen Year Treasury
Rate" (as defined in the Indenture pursuant to which the Junior Exchange Notes
will be issued). Interest will accrue on overdue principal at the same rate, but
will not accrue on overdue interest.
Series Preferred Stock
The Series Preferred Stock is issuable, from time to time, in one or
more series, with such designations, preferences and relative, participating,
optional or other special rights, qualifications, limitations or restrictions
thereof as shall be stated and expressed in a resolution or resolutions
providing for the issue of such series adopted by the Board of Directors. All
shares of any one series of the Series Preferred Stock are required to be alike
in every particular and all series are required to rank equally and be identical
in all respects, except insofar as they may vary with respect to matters which
the Board is expressly authorized by the Company's Restated Certificate of
Incorporation to determine in the resolution or resolutions providing for the
issue of any series of the Series Preferred Stock. No assurance can be given
that the terms of any future series of Series Preferred Stock will not
materially limit or qualify the rights of the holders of Class A or Class B
Common Stock in a manner that is different from or in addition to the terms of
any class or series of Preferred Stock that are outstanding on the date of this
Prospectus.
<PAGE>
Convertible Preferred Stock, Series C. The Company is authorized to
issue 80,000 shares of Convertible Preferred Stock, Series C ("Series C
Preferred Stock"), of which 70,559 were issued and outstanding as of the date of
this Prospectus. Each share of Series C Preferred Stock is convertible, at the
option of the holder, into 100 shares of Class A Common Stock, subject to anti-
dilution adjustments. The dividend, liquidation and redemption features of the
Series C Preferred Stock, each of which is discussed below, are determined by
reference to the liquidation value of the Series C Preferred Stock, which as of
any date of determination is equal, on a per share basis, to the sum of (i)
$2,375, plus (ii) all dividends accrued on such share through the dividend
payment date on or immediately preceding such date of determination to the
extent not paid on or before such date, plus (iii), for purposes of determining
liquidation and redemption payments, all unpaid dividends accrued on the sums of
clauses (i) and (ii) above, to such date of determination. The holders of Series
C Preferred Stock are entitled to receive preferential cumulative cash dividends
out of funds legally available therefor. Dividends accrue cumulatively at an
annual rate of 5 1/2% of the liquidation value per share, whether or not such
dividends are declared or funds are legally or contractually available for
payment of dividends, except that if the Company fails to redeem shares of
Series C Preferred Stock required to be redeemed on a redemption date, dividends
will thereafter accrue cumulatively at an annual rate of 15% of the liquidation
value per share. Dividends not paid on any dividend payment date will be added
to the liquidation value on such date and remain a part thereof until such
dividends and all dividends accrued thereon are paid in full. Dividends will
accrue on unpaid dividends at the rate of 5 1/2% per annum, unless such
dividends remain unpaid for two consecutive quarters in which event such rate
will increase to 15% per annum.
Upon the dissolution, liquidation or winding up of the Company,
holders of the Series C Preferred Stock will be entitled to receive from the
assets of the Company available for distribution to stockholders an amount in
cash, per share, equal to the liquidation value of the Series C Preferred Stock.
The Series C Preferred Stock is subject to optional redemption at any
time after the seventh anniversary of its issuance, in whole or in part, by the
Company at a redemption price per share equal to the then liquidation value of
the Series C Preferred Stock. Subject to the prior preferences and other rights
of any other class or series of Preferred Stock ranking senior to or on a parity
with the Series C Preferred Stock, the Series C Preferred Stock is required to
be redeemed by the Company at any time after such seventh anniversary at the
option of the holder, in whole or in part (provided that the aggregate
liquidation value of the shares to be redeemed is in excess of $1 million), in
each case at a redemption price per share equal to the liquidation value.
Redeemable Convertible Preferred Stock, Series E. The Company is
authorized to issue 400,000 shares of Redeemable Convertible Preferred Stock,
Series E ("Series E Preferred Stock") of which 246,402 were issued and
outstanding as of the date of this Prospectus and all of which were held by
wholly-owned subsidiaries of the Company. At any time after the Company amends
its Restated Certificate of Incorporation to increase the number of authorized
shares of Class A Common Stock to a number that would permit the conversion of
all of the shares of Series E Preferred Stock then outstanding, the shares of
Series E Preferred Stock shall be convertible, at the option of the holder, into
Class A Common Stock at the rate of 1,000 shares of Class A Common Stock for
each share of Series E Preferred Stock, subject to anti-dilution adjustments.
The dividend, liquidation and redemption features of the Series E Preferred
Stock, each of which is discussed below, are determined by reference to the
liquidation value of the Series E Preferred Stock, which as of any date of
determination is equal, on a per share basis, to the sum of (i) $22,303, plus
(ii) all dividends accrued on such share through the dividend payment date on or
immediately preceding such date of determination to the extent not paid on or
before such date, plus (iii) for purposes of determining liquidation and
redemption payments, all unpaid dividends accrued on the sum of clauses (i) and
(ii) above, to such date of determination.
<PAGE>
The holders of Series E Preferred Stock are entitled to receive
preferential cumulative cash dividends out of funds legally available therefor.
Dividends accrue cumulatively at an annual rate of 5% of the stated liquidation
value per share, whether or not such dividends are declared or funds are legally
available for payment of dividends. Dividends not paid on any dividend payment
date are added to the liquidation value on such date and remain a part thereof
until such dividends are paid.
Upon the dissolution, liquidation or winding up of the Company,
holders of the Series E Preferred Stock will be entitled to receive from the
assets of the Company available for distribution to stockholders an amount in
cash or property or a combination thereof, per share, equal to the liquidation
value of the Series E Preferred Stock.
The Series E Preferred Stock is subject to optional redemption by the
Company at any time, in whole or in part, at a redemption price, per share,
equal to the then liquidation value of the Series E Preferred Stock. The Company
may elect to pay the redemption price (or designated portion thereof) of the
shares of Series E Preferred Stock called for redemption by issuing to the
holder thereof, in respect of his shares to be redeemed, a number of shares of
Class A Common Stock equal to the aggregate redemption price (or designated
portion thereof) of such shares divided by the average of the last daily sales
prices of the Class A Common Stock for a specified period, subject to
adjustments described in the certificate of designations establishing the Series
E Preferred Stock.
Convertible Preferred Stock, Series D. The Company has entered into a
definitive merger agreement with TeleCable Corporation ("TeleCable") whereby
TeleCable will be merged with and into a wholly-owned subsidiary of the Company
(the "TeleCable Merger"). The terms of the TeleCable Merger contemplate the
issuance to the former stockholders of TeleCable of one million shares of a new
series of Series Preferred Stock to be designated as "Convertible Preferred
Stock, Series D" (the "Series D Preferred Stock"), as partial consideration for
the proposed acquisition by the Company of TeleCable. If such series is issued,
the preferences and relative, participating, optional or other special rights,
qualifications, limitations or restrictions thereof are expected to be as set
forth below.
Each share of Series D Preferred Stock will be convertible, at the
option of the holder, into 10 shares of Class A Common Stock, subject to anti-
dilution adjustments. The dividend, liquidation and redemption features of the
Series D Preferred Stock, each of which is discussed below, will be determined
by reference to the liquidation value of the Series D Preferred Stock, which as
of any date of determination will equal, on a per share basis, the sum of (i)
$300, plus (ii) all dividends accrued on such share through the dividend payment
date on or immediately preceding such date of determination to the extent not
paid on or before such date, plus (iii) for purposes of determining liquidation
and redemption payments, all unpaid dividends accrued on the sum of clauses (i)
and (ii) above, to such date of determination.
The holders of Series D Preferred Stock will be entitled to receive
preferential cumulative cash dividends out of funds legally available therefor.
Dividends will accrue cumulatively at an annual rate of 5 1/2% of the
liquidation value per share, whether or not such dividends are declared or funds
are legally or contractually available for payment of dividends, except that if
the Company fails to redeem shares of Series D Preferred Stock required to be
redeemed on a redemption date, dividends thereafter will accrue cumulatively at
an annual rate of 10% of the liquidation value per share. Dividends not paid on
any dividend payment date will be added to the liquidation value on such date
and remain a part thereof until such dividends and all dividends accrued thereon
are paid in full. Dividends will accrue on unpaid dividends at the rate of 5
1/2% per annum, unless such dividends remain unpaid for two consecutive quarters
in which event such rate shall increase to 10% per annum. To the extent any cash
<PAGE>
dividends are not paid on any dividend payment date, the amount of such
dividends will be converted, to the extent permissible under the Delaware
General Corporation Law, into shares of Class A Common Stock at a conversion
rate equal to 95% of the then current market price (as defined in the
certificate of designations establishing the Series D Preferred Stock) of Class
A Common Stock, and upon issuance of Class A Common Stock to holders of Series D
Preferred Stock in respect of such conversion such dividend will be deemed paid
for all purposes.
Upon the dissolution, liquidation or winding up of the Company,
holders of the Series D Preferred Stock will be entitled to receive from the
assets of the Company available for distribution to stockholders an amount in
cash, per share, equal to the liquidation value of the Series D Preferred Stock.
The Series D Preferred Stock will be subject to optional redemption by
the Company at any time after the fifth anniversary of its issuance, in whole or
from time to time in part, at a redemption price per share equal to the
liquidation value of the Series D Preferred Stock. Shares of Series D Preferred
Stock may also be subject to optional redemption by the Company after the third
anniversary of the issue date if the market value per share of Class A Common
Stock shall have exceeded $37.50 for the period specified in the certificate of
designations establishing the Series D Preferred Stock. Subject to the prior
preferences and other rights of any other class or series of Preferred Stock
ranking senior to or on a parity basis with, the Series D Preferred Stock and
subject to any prohibition or restriction contained in any instrument evidencing
indebtedness of the Company, any holder of Series D Preferred Stock, at such
holder's option, may require the Company, at any time after the tenth
anniversary of the issuance of such Series D Preferred Stock, to redeem all or a
portion of such holder's shares of Series D Preferred Stock, provided that the
aggregate liquidation value of the shares to be redeemed is in excess of $50,000
(or, if all of the shares of Series D Preferred Stock held by such holder has an
aggregate liquidation value of less than $50,000, all but not less than all of
such shares of Series D Preferred Stock), in each case at a redemption price per
share equal to the then liquidation value of the Series D Preferred Stock. If
the Company fails to effect any redemption of Series D Preferred Stock, the
holders thereof will have the option to convert their shares of Series D
Preferred Stock into Class A Common Stock at a conversion rate equal to 95% of
the current market value of the Class A Common Stock over a period specified in
the certificate of designations establishing the Series D Preferred Stock,
provided that such option may not be exercised unless the failure to redeem
continues for more than a year.
Ranking; Limitations on Rights of Holders of Common Stock
All classes and series of Preferred Stock outstanding on the date of
this Prospectus rank senior to the Class A Common Stock and Class B Common Stock
as to dividend rights, rights to redemption and rights on liquidation.
For so long as any dividends are in arrears on any outstanding class
or series of Preferred Stock, and until all dividends accrued up to the
immediately preceding dividend payment date on such Preferred Stock and on any
class or series of Preferred Stock ranking on a parity with such Preferred Stock
("Parity Stock") shall have been paid or declared and set apart so as to be
available for payment in full thereof and for no other purpose, neither the
Company nor any subsidiary thereof may purchase or otherwise acquire any shares
of Class A Common Stock or Class B Common Stock, or set aside any money or
assets for any such purpose, unless all of the outstanding shares of such
Preferred Stock and Parity Stock are redeemed. For so long as any dividends are
in arrears on any outstanding class or series of Preferred Stock and until all
dividends accrued up to the immediately preceding dividend payment date on such
Preferred Stock shall have been paid or declared and set apart so as to be
available for payment in full thereof and for no other purpose, the Company may
not declare or pay any dividend on or make any distribution with respect to the
Class A Common Stock or Class B Common Stock or set aside any money or assets
for any such purpose. If the Company fails to redeem shares of Class A Preferred
Stock, Class B Preferred Stock or Series E Preferred Stock required to be
redeemed on a redemption date, the Company may not declare or pay any dividend
on or make any distribution with respect to the Class A Common Stock or Class B
Common Stock or set aside money or assets for any such purpose, and neither the
Company nor any subsidiary thereof may purchase or otherwise acquire any shares
of Class A Common Stock or Class B Common Stock or set aside any money or assets
for any such purpose, until all shares of such class or series of Preferred
<PAGE>
Stock are redeemed in full. If the Company fails to redeem shares of Series C
Preferred Stock or Series D Preferred Stock required to be redeemed on a
redemption date, neither the Company nor any subsidiary thereof may purchase or
otherwise acquire any shares of Class A Common Stock or Class B Common Stock or
set aside any money or assets for any such purpose, until all shares of such
series of Preferred Stock are redeemed in full. Neither the Company nor any
subsidiary thereof may purchase or otherwise acquire any shares of Class A
Common Stock or Class B Common Stock, or set aside any money or assets for such
purpose, if after giving effect to such purchase or acquisition the amount that
would be available for distribution to the holders of Class A Preferred Stock,
Class B Preferred Stock and Series E Preferred Stock upon liquidation,
dissolution or winding up of the Company, if such liquidation, dissolution or
winding up were to occur on the date fixed for such purchase or acquisition of
shares of Class A Common Stock or Class B Common Stock, would be less than the
aggregate liquidation preference of all then outstanding shares of such classes
and series of Preferred Stock. The failure of the Company (i) to redeem on any
date fixed for redemption any outstanding shares of Class A Preferred Stock,
Class B Preferred Stock or Series E Preferred Stock or (ii) to pay dividends on
the Series C Preferred Stock or Series D Preferred Stock, shall not prevent the
Company from paying any dividends on Class A Common Stock or Class B Common
Stock solely in shares of capital stock ranking junior to such class or series
of Preferred Stock or (with respect to (i) above only) the purchase or other
acquisition of Class A Common Stock or Class B Common Stock solely in exchange
for (together with a cash adjustment for fractional shares, if any) shares of
such junior capital stock.
SELLING STOCKHOLDER
The Selling Stockholder is Comcast Heritage, Inc., a Delaware
corporation and a wholly owned subsidiary of Comcast Corporation ("Comcast"), a
Pennsylvania corporation. The Shares were acquired by the Selling Stockholder
pursuant to that certain Stock Exchange Agreement dated October 24, 1994 by and
among the Company, TCIC and the Selling Stockholder (the "Agreement"). As of
the date of this Prospectus, the Selling Stockholder does not own any shares of
Class A Common Stock other than the Shares. From time to time, TCI, the Selling
Stockholder, and their respective affiliates, including Comcast, have engaged in
and expect to continue to engage in certain arm's length transactions. Such
transactions have included jointly owning Storer Communications, Inc., a
multiple system cable operator, and currently include jointly operating certain
telecommunications interests in the United Kingdom, jointly investing in QVC,
Inc. and jointly offering to acquire the balance of the equity interest of QVC,
Inc., participating in a joint venture with Sprint Corporation and Cox Cable
Communications, Inc. to provide wireless communications services, and jointly
investing in Teleport Communications Group, Inc., an alternative provider of
local telephone services. The Selling Stockholder has not had any position,
office or other material relationship within the past three years with the
Company or any of its predecessors or affiliates, other than as described above.
PLAN OF DISTRIBUTION
All of the Shares offered hereby are being sold by the Selling
Stockholder. The Company will not receive any of the proceeds from the sale of
the Shares.
Any or all of the Shares offered hereby by the Selling Stockholder may
be offered and sold to purchasers directly by or on behalf of the Selling
Stockholder from time to time in the over-the-counter market, in privately
negotiated transactions, or otherwise at prices prevailing in such market or as
may be negotiated at the time of the sale. The Shares may also be publicly
offered through underwriters, dealers or agents. In such event the Selling
Stockholder may enter into agreements with respect to any such offering. Such
underwriters, dealers or agents may receive compensation in the form of
underwriting discounts, concessions or commissions from the Selling Stockholder
and/or the purchasers of the Shares. The Selling Stockholder and any such
underwriters, dealers or agents that participate in the distribution of the
Shares may be deemed to be underwriters within the meaning of the Securities
Act, and any profit on the sale of the Shares by them and any discounts,
commissions or concessions received by them may be deemed to be underwriting
discounts and commissions under the Securities Act. Any such underwriters,
dealers and agents may engage in transactions with, and perform services for,
the
<PAGE>
Company. At the time a particular offer of Shares is made by the Selling
Stockholder or any pledgee or other permitted assignee or other successor in
interest, to the extent required, a Prospectus Supplement will be distributed
which will set forth the aggregate number of Shares being offered, and the terms
of the offering, including the public offering price thereof, the name or names
of any permitted assignee or other successor in interest, the name or names of
any underwriters, dealer or agents, any underwriting discounts, commissions and
other items constituting compensation from, and the resulting net proceeds to,
the Selling Stockholder or any permitted assignee or other successor in
interest, any discounts, commissions or concessions allowed or reallowed or paid
to dealers and, if applicable, the purchase price to be paid by any underwriter
for the Shares purchased from the Selling Stockholder or any permitted assignee
or other successor in interest.
In order to comply with the securities laws of certain states, sales
of Shares offered hereby to the public in such states may be made only through
broker-dealers who are registered or licensed in such states. Sales of Shares
offered hereby must also be made by the Selling Stockholder in compliance with
other applicable state securities laws and regulations.
The Company has agreed to indemnify the Selling Stockholder against
certain liabilities which may be incurred in connection with the sale of Shares
under this Prospectus.
Certain expenses in connection with the distribution of the Shares,
including registration and filing fees, printing expenses, fees and
disbursements of the Company's counsel and fees and expenses of any accountants,
will be borne by the Company. The Selling Stockholder will pay any brokerage
discounts, commissions or fees, any fees and disbursements of its counsel and
any other expenses attributable to the distribution of the Shares.
LEGAL MATTERS
Certain legal matters with respect to the Shares will be passed upon
by Sherman & Howard L.L.C., 633 Seventeenth Street, Denver, Colorado 80202.
Certain members of Sherman & Howard L.L.C. serve as Assistant Secretaries of
TCI.
EXPERTS
The consolidated balance sheets of TCI Communications, Inc. (formerly
Tele-Communications, Inc.) and subsidiaries as of December 31, 1993 and 1992,
and the related consolidated statements of operations, stockholders' equity, and
cash flows for each of the years in the three-year period ended December 31,
1993, and the related financial statement schedules, which appear in the Annual
Report on Form 10-K, as amended, of TCI Communications, Inc. for the year
<PAGE>
ended December 31, 1993, have been incorporated by reference herein in reliance
upon the reports, dated March 21, 1994, of KPMG Peat Marwick LLP, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing. The reports of
KPMG Peat Marwick LLP refer to a change in the method of accounting for income
taxes in 1993.
The consolidated balance sheets of Liberty Media Corporation and
subsidiaries (Successor) as of December 31, 1993 and 1992, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
the years ended December 31, 1993 and 1992 and the period from April 1, 1991 to
December 31, 1991 (Successor Periods) and the consolidated statements of
operations, stockholders' equity, and cash flows of Liberty Media (a
combination of certain programming interests and cable television assets of TCI
Communications, Inc. (formerly Tele-Communications, Inc.)) (Predecessor) for the
period from January 1, 1991 to March 31, 1991 (Predecessor Period), included
in the Current Report on Form 8-K of TCI Communications, Inc. dated April 6,
1994, have been incorporated by reference herein in reliance upon the report,
dated March 18, 1994, of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing. The report of KPMG Peat Marwick LLP
refers to a change in the method of accounting for income taxes in 1993.
The financial statements of TeleCable Corporation and its subsidiaries
as of December 31, 1993 and 1992 and for each of the two years in the period
ended December 31, 1993, incorporated herein by reference to the Company's
Current Report on Form 8-K dated August 26, 1994, have been so incorporated in
reliance on the report of Price Waterhouse LLP, independent accountants, given
on the authority of said firm as experts in accounting and auditing.
<PAGE>
================================================================================
No dealer, salesman or other person has been authorized to give any
information or to make any representation other than those contained in this
Prospectus or the Prospectus Supplement in connection with the offer made hereby
and, if given or made, such information or representation must not be relied
upon as having been authorized by the Company. Neither the delivery of this
Prospectus or the Prospectus Supplement nor any sale made hereunder shall, under
any circumstances, create an implication that the information contained or
incorporated by reference herein is correct as of any time subsequent to its
date or that there has been no change in the affairs of the Company since such
date. This Prospectus and the Prospectus Supplement do not constitute an offer
to sell or a solicitation of an offer to buy by anyone in any jurisdiction in
which such offer or solicitation is not authorized, or in which the person
making such offer or solicitation is not qualified to do so, or to anyone to
whom it is unlawful to make such offer or solicitation.
-------------------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information................................................. 2
Incorporation of Documents by Reference............................... 3
Certain Considerations................................................ 4
The Company........................................................... 4
Description of Capital Stock.......................................... 5
Selling Stockholder................................................... 11
Plan of Distribution.................................................. 11
Legal Matters......................................................... 12
Experts............................................................... 12
</TABLE>
================================================================================
================================================================================
Tele-Communications, Inc.
Class A Common Stock
($1.00 Par Value)
-----------------------
PROSPECTUS
-----------------------
January __, 1995
================================================================================
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table shows the estimated expenses to be incurred in
connection with the issuance and distribution of the securities being registered
by the Company.
<TABLE>
<S> <C>
Securities and Exchange Commission filing fee .................... $100,548
/*/Blue sky fees and expenses including legal fees ............... $ 10,000
/*/Accounting fees and expenses .................................. $ 15,000
/*/Legal fees and expenses ....................................... $ 12,500
/*/Printing expenses ............................................. $ 5,000
/*/Miscellaneous expenses ........................................ $ 2,152
-------
/*/Total .................................................... $145,200
=======
</TABLE>
Item 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the "DGCL")
provides, generally, that a corporation shall have the power to indemnify any
person who was or is a party or is threatened to be made a party to any action,
suit, or proceeding (except actions by or in the right of the corporation) by
reason of the fact that such person is or was a director, officer, employee, or
agent of the corporation against all expenses, judgments, fines, and amounts
paid in settlement actually and reasonably incurred by him in connection with
such action, suit, or proceeding if he acted in good faith and in a manner he
reasonably believed to be in or not opposed to the best interest of the
corporation and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. A corporation may
similarly indemnify such person for expenses actually and reasonably incurred by
him in connection with the defense or settlement of an action or suit by or in
the right of the corporation if such person acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation, and, in the case of claims, issues, and matters as to which such
person shall have been adjudged liable to the corporation, provided that a court
shall have determined, upon application, that, despite the adjudication of
liability, but in view of all of the circumstances of the case, such person is
fairly and reasonably entitled to indemnity for such expenses that such court
shall deem proper.
Section 102(b)(7) of the DGCL provides, generally, that the
certificate of incorporation may contain a provision eliminating or limiting the
personal liability of a director to the corporation or its stockholders for
monetary damages for breach of fiduciary duty as a director, provided that such
provision may not eliminate or limit the liability of a director (i) for any
breach of the director's duty
- -------------------
/*/ estimated
II-1
<PAGE>
of loyalty to the corporation or its stockholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of law, (iii) under Section 174 of Title 8, or (iv) for any transaction from
which the director derived an improper personal benefit. No such provision may
eliminate or limit the liability of a director for any act or omission occurring
prior to the date when such provision became effective.
Article V, Section E of TCI's Restated Certificate of Incorporation,
as amended (the "TCI Charter"), provides as follows:
A. Limitation on Liability
To the fullest extent permitted by the Delaware General
Corporation Law as the same exists or may hereafter be amended, a
director of the Corporation shall not be liable to the Corporation
or any of its stockholders for monetary damages for breach of
fiduciary duty as a director. Any repeal or modification of this
paragraph 1 shall be prospective only and shall not adversely affect
any limitation, right or protection of a director of the Corporation
existing at the time of such repeal or modification.
B. Indemnification
a. Right to Indemnification. The Corporation shall indemnify
and hold harmless, to the fullest extent permitted by applicable law
as it presently exists or may hereafter be amended, any person who
was or is made or is threatened to be made a party or is otherwise
involved in any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a "proceeding") by reason of the
fact that he, or a person for whom he is the legal representative,
is or was a director or officer of the Corporation or is or was
serving at the request of the Corporation as a director, officer,
employee or agent of another corporation or of a partnership, joint
venture, trust, enterprise or nonprofit entity, including service
with respect to employee benefit plans, against all liability and
loss suffered and expenses (including attorneys' fees) reasonably
incurred by such person. Such right of indemnification shall inure
whether or not the claim asserted is based on matters which antedate
the adoption of this Section E. The Corporation shall be required
to indemnify a person in connection with a proceeding (or part
thereof) initiated by such person only if the proceeding (or part
thereof) was authorized by the Board of Directors of the
Corporation.
b. Prepayment of Expenses. The Corporation shall pay the
expenses (including attorneys' fees) incurred in defending any
proceeding in advance of its final disposition, provided, however,
that the payment of expenses incurred by a director or officer in
advance of the final disposition of the proceeding shall be made
only upon
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<PAGE>
receipt of an undertaking by the director or officer to repay all
amounts advanced if it should be ultimately determined that the
director or officer is not entitled to be indemnified under this
paragraph or otherwise.
c. Claims. If a claim for indemnification or payment of
expenses under this paragraph is not paid in full within 60 days
after a written claim therefor has been received by the Corporation,
the claimant may file suit to recover the unpaid amount of such
claim and, if successful in whole or in part, shall be entitled to
be paid the expense of prosecuting such claim. In any such action
the Corporation shall have the burden of proving that the claimant
was not entitled to the requested indemnification or payment of
expenses under applicable law.
d. Non-Exclusivity of Rights. The rights conferred on any
person by this paragraph shall not be exclusive of any other rights
which such person may or hereafter acquire under any statute,
provision of this Certificate, the Bylaws, agreement, vote of
stockholders or disinterested directors or otherwise.
e. Other Indemnification. The Corporation's obligation, if any,
to indemnify any person who was or is serving at its request as a
director, officer, employee or agent of another corporation,
partnership, joint venture, trust, enterprise or nonprofit entity
shall be reduced by any amount such person may collect as
indemnification from such other corporation, partnership, joint
venture, trust, enterprise or nonprofit entity.
Article II, Section 2.9 of TCI's By-laws also contains an indemnity
provision, requiring TCI to indemnify members of the Board of Directors and
officers of TCI and their respective heirs, personal representatives and
successors in interest for or on account of any action performed on behalf of
TCI, to the fullest extent provided by the laws of the State of Delaware and the
TCI Charter.
TCI has entered into indemnification agreements with each person who
is a director of TCI (each director, an "indemnitee"). The indemnification
agreements provide (i) for the prompt indemnification to the fullest extent
permitted by law against any and all expenses, including attorneys' fees and all
other costs, expenses and obligations paid or incurred in connection with
investigating, defending, being a witness or participating in (including on
appeal), or in preparing for ("Expenses"), any threatened, pending or completed
action, suit or proceeding, or any inquiry or investigation ("Claim"), related
to the fact that such indemnitee is or was a director, officer, employee, agent
or fiduciary of TCI or is or was serving at TCI's request as a director,
officer, employee, trustee, agent or fiduciary of another corporation,
partnership, joint venture, employee benefit plan, trust or other enterprise, or
by reason of anything done or not done by a director or officer in any such
capacity, and against any and all judgments, fines, penalties and amounts paid
in settlement (including all interest, assessments and other charges paid or
payable in connection therewith) of any Claim, unless the Reviewing Party (one
or more members of the Board of Directors or other person appointed by the
II-3
<PAGE>
Board of Directors, who is not a party to the particular claim, or independent
legal counsel) determines that such indemnification is not permitted under
applicable law and (ii) for the prompt advancement of Expenses, and for
reimbursement to TCI if the Reviewing Party determines that such indemnitee is
not entitled to such indemnification under applicable law. In addition, the
indemnification agreements provide (i) a mechanism through which an indemnitee
may seek court relief in the event the Reviewing Party determines that the
indemnitee would not be permitted to be indemnified under applicable law (and
therefore is not entitled to indemnification or expense advancement under the
indemnification agreement) and (ii) indemnification against all expenses
(including attorneys' fees), and advancement thereof if requested, incurred by
the indemnitee in seeking to collect an indemnity claim or advancement of
expenses from TCI or incurred in seeking to recover under a directors' and
officers' liability insurance policy, regardless of whether successful or not.
Furthermore, the indemnification agreements provide that after there has been a
"change in control" of TCI (as defined in the indemnification agreements), other
than a change in control approved by a majority of directors who were directors
prior to such change, then, with respect to all determinations regarding a right
to indemnity and the right to advancement of Expenses, TCI will seek legal
advice only from independent legal counsel selected by the indemnitee and
approved by TCI.
The indemnification agreements impose upon TCI the burden of proving
that an indemnitee is not entitled to indemnification in any particular case and
negate certain presumptions that may otherwise be drawn against an indemnitee
seeking indemnification in connection with the termination of actions in certain
circumstances. Indemnitees' rights under the indemnification agreements are not
exclusive of any other rights they may have under the DGCL, TCI By-laws or
otherwise. Although not requiring the maintenance of directors' and officers'
liability insurance, the indemnification agreements require that indemnitees be
provided with the maximum coverage available for any director or officer of TCI
if there is such a policy.
TCI may purchase liability insurance policies covering its directors
and officers.
In addition, the Selling Stockholder has agreed to indemnify the
Company, its directors and officers and each person, if any, who controls the
Company within the meaning of the Securities Act or the Exchange Act against
certain liabilities under the Securities Act.
II-4
<PAGE>
Item 16. Exhibits.
Exhibit
Number Description
------ -----------
4.1 Specimen Certificate for Class A Common Stock (Incorporated by
reference herein to Exhibit 4.1 of Registration Statement No. 33-54263,
filed June 23, 1994. Commission File No. 0-20421)
4.2 Registrant's Restated Certificate of Incorporation (incorporated by
reference herein to Exhibit 3.1 of Registration Statement No. 33-56135,
filed December 16, 1994. Commission File No. 0-20421)
4.3 Registrant's By-laws (Incorporated by reference herein to Exhibit 3.4
of Registration Statement No. 33-54263, filed June 23, 1994. Commission
File No. 0-20421)
5 Opinion of Sherman & Howard L.L.C. regarding
legality of issuance of Shares
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Price Waterhouse LLP
23.4 Consent of Sherman & Howard L.L.C. (included in Exhibit 5)
24 Power of Attorney (included herein on page II-8)
II-5
<PAGE>
Item 17. Undertakings.
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the
Securities Act of 1933;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most
recent post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the Registration Statement;
(iii) To include any material information with respect to the
plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the
Registration Statement;
provided, however, that paragraphs (1)(i) and (1)(ii) above do not apply if the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to section 13 or section 15(d) of the
Securities Exchange Act of 1934 that are incorporated by reference in the
Registration Statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be deemed to be
a new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination of
the offering.
(4) That, for purposes of determining any liability under the
Securities Act of 1933, each filing of the Registrant's annual report pursuant
to section 13(a) or section 15(d) of the Securities Exchange Act of 1934 (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to section 15(d) of the Securities Exchange Act of 1934) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers, and controlling
persons of the Registrant pursuant to the foregoing provisions, or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other
II-6
<PAGE>
than the payment by the Registrant of expenses incurred or paid by a director,
officer or controlling person of the Registrant in the successful defense of any
action, suit, or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered, the
Registrant will, unless in the opinion of its counsel the matter has been
settled by controlling precedent, submit to a court of appropriate jurisdiction
the question whether such indemnification by it is against public policy as
expressed in the Act and will be governed by the final adjudication of such
issue.
II-7
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as
amended, 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
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Greenwood Village, State of Colorado, on
December 29, 1994.
TELE-COMMUNICATIONS, INC.
By: /s/ Stephen M. Brett
--------------------------------------------
Stephen M. Brett
Executive Vice President and Secretary
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Stephen M. Brett and Brendan R.
Clouston, and each of them, his true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacities, to sign any and all amendments
(including pre-effective and post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto, and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorneys-in-fact and agents, and each of them, full power and
authority to do and perform each and every act and thing requisite or necessary
to be done in and about the premises, as fully to all intents and purposes as he
might or could do in person, hereby ratifying and confirming all that said
attorneys-in-fact and agents, or either of them, or their or his substitute or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
--------- ----- ----
Chairman of the Board December __, 1994
- ------------------------- and Director
Bob Magness
/s/ John C. Malone Chief Executive Officer, December 29, 1994
- ------------------------- President, and Director
John C. Malone (Principal Executive Officer)
II-8
<PAGE>
/s/ Donne F. Fisher Executive Vice President,
- ------------------------- Treasurer, and Director December 29, 1994
Donne F. Fisher (Principal Financial Officer and
Principal Accounting Officer)
/s/ John W. Gallivan Director December 27, 1994
- -------------------------
John W. Gallivan
Director December __, 1994
- -------------------------
Kim Magness
Director December __, 1994
- -------------------------
Robert A. Naify
/s/ Jerome H. Kern Director December 28, 1994
- -------------------------
Jerome H. Kern
/s/ Anthony L. Coelho Director December 28, 1994
- -------------------------
Anthony L. Coelho
/s/ R.E. Turner Director December 29, 1994
- -------------------------
R.E. Turner
II-9
<PAGE>
EXHIBIT INDEX
Page Number in
Exhibit Sequentially
Number Description Numbered Copy
------ ----------- --------------
4.1 Specimen Certificate for Class A Common Stock
(Incorporated by reference herein to Exhibit 4.1
of Registration Statement No. 33-54263, filed
June 23, 1994. Commission File No. 0-20421)
4.2 Registrant's Restated Certificate of Incorporation
(Incorporated by reference herein to Exhibit 3.1
of Registration Statement No. 33-56135, filed
December 16, 1994. Commission File No. 0-20421)
4.3 Registrant's By-laws (Incorporated by reference
herein to Exhibit 3.4 of Registration Statement
No. 33-54263, filed June 23, 1994. Commission
File No. 0-20421)
5 Opinion of Sherman & Howard L.L.C. regarding
legality of issuance of Shares
23.1 Consent of KPMG Peat Marwick LLP
23.2 Consent of KPMG Peat Marwick LLP
23.3 Consent of Price Waterhouse LLP
23.4 Consent of Sherman & Howard L.L.C. Note 1
24 Power of Attorney Note 2
- ----------------
Note 1 Included as part of Exhibit 5 hereto.
Note 2 Included herein on page II-8
<PAGE>
EXHIBIT 5
[SHERMAN & HOWARD LETTERHEAD APPEARS HERE]
December 29, 1994
Tele-Communications, Inc.
5619 DTC Parkway
Englewood, Colorado 80111
Re: Validity of Class A Common Stock
Ladies and Gentlemen:
We have acted as special counsel to Tele-Communications, Inc., a
Delaware corporation (the "Company"), in connection with its Registration
Statement on Form S-3 (Registration No. 33-56135) relating to approximately
13,523,000 shares of the Company's Class A Common Stock, $.01 par value per
share ("Common Stock"), issuable pursuant to a Stock Exchange Agreement dated
October 24, 1994 by and among Comcast Heritage, Inc., TCI Communications, Inc.
and the Company (the "Agreement").
We have examined the Company's Restated Certificate of Incorporation,
as amended, and Bylaws, and minutes of the proceedings of the Board of Directors
of the Company authorizing the issuance of the Common Stock and the execution,
delivery and performance of the Agreement.
Based upon the foregoing examination, we advise you that in our
opinion the shares of Common Stock to be offered pursuant to the
Registration Statement have been duly authorized and when issued as contemplated
in the Agreement, will be validly issued, fully paid and nonassessable.
<PAGE>
Tele-Communications, Inc.
December 15, 1994
Page 2
We consent to the filing of this opinion as an exhibit to the
Registration Statement referred to above and to the reference to our firm under
the heading "Legal Matters" in the Registration Statement. In giving this
consent, we do not thereby admit that we are within the category of persons
whose consent is required under Section 7 of the Securities Act of 1933 or the
Rules of the Securities and Exchange Commission thereunder.
Yours truly,
SHERMAN & HOWARD L.L.C.
<PAGE>
Exhibit 23.1
------------
Consent of Independent Auditors
-------------------------------
The Board of Directors and Stockholders
TCI Communications, Inc.:
We consent to the incorporation by reference in the registration statement on
Form S-3 of Tele-Communications, Inc. of our reports, dated March 21, 1994,
relating to the consolidated balance sheets of TCI Communications, Inc.
(formerly Tele-Communications, Inc.) and subsidiaries as of December 31, 1993
and 1992, and the related consolidated statements of operations, stockholders'
equity, and cash flows for each of the years in the three-year period ended
December 31, 1993, and all related schedules, which reports appear in the
December 31, 1993 Annual Report on Form 10-K, as amended, of TCI Communications,
Inc. and to the reference to our firm under the heading "Experts" in the
registration statement. Our reports refer to a change in the method of
accounting for income taxes in 1993.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Denver, Colorado
December 27, 1994
<PAGE>
Exhibit 23.2
------------
Consent of Independent Auditors
-------------------------------
The Board of Directors and Stockholders
Liberty Media Corporation:
We consent to the incorporation by reference in the registration statement on
Form S-3 of Tele-Communications, Inc. of our report, dated March 18, 1994,
relating to the consolidated balance sheets of Liberty Media Corporation and
subsidiaries (Successor) as of December 31, 1993 and 1992, and the related
consolidated statements of operations, stockholders' equity, and cash flows for
the years ended December 31, 1993 and 1992 and the period from April 1, 1991 to
December 31, 1991 (Successor Periods) and the consolidated statements of
operations, stockholders' equity, and cash flows of Liberty Media (a combination
of certain programming interests and cable television assets of TCI
Communications, Inc.) (formerly Tele-Communications, Inc.) (Predecessor) for the
period from January 1, 1991 to March 31, 1991 (Predecessor Period), which
report appears in the Form 8-K of TCI Communications, Inc. dated April 6, 1994,
and to the reference to our firm under the heading "Experts" in the registration
statement. Our report refers to a change in the method of accounting for income
taxes in 1993.
/s/ KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Denver, Colorado
December 27, 1994
<PAGE>
EXHIBIT 23.3
------------
Consent of Independent Accountants
----------------------------------
We hereby consent to the incorporation by reference in the Prospectus on Form
S-3 Registration Statement of Tele-Communications, Inc. of our report dated
February 4, 1994, relating to the consolidated financial statements of TeleCable
Corporation which appears on page 12 of the TCI Communications, Inc. and
Tele-Communications, Inc. Current Report on Form 8-K dated August 26, 1994. We
also consent to the reference to us under the heading "Experts" in such
Registration Statement.
/s/ Price Waterhouse LLP
Price Waterhouse LLP
Norfolk, Virginia
December 28, 1994
