<PAGE>
As filed with the Securities and Exchange Commission on _______ ___ 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>
================================================================================================================
Title of Each Class Proposed Maximum Proposed Maximum
of Securities Amount to be Offering Price Aggregate Offering Amount of
to be Registered Registered Per Share(1) Price(1) Registration Fee
- ----------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
CLASS A COMMON STOCK, 2,000,000
$1.00 PAR VALUE Shares $18.8125 $37,625,000 $12,974.14
===============================================================================================================
</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
April 13, 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>
Subject to Completion, dated ____________, 1995
PROSPECTUS
- ----------
2,000,000 SHARES
TELE-COMMUNICATIONS, INC.
CLASS A COMMON STOCK
($1.00 PAR VALUE)
____________________
This Prospectus relates to 2,000,000 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 from time to time by the Selling Stockholder in regular
brokerage transactions on a national securities exchange or in the over-the-
counter market, in transactions directly with market makers, in privately
negotiated transactions, or through a combination of such methods at fixed
prices (which may be changed), at market prices prevailing at the time of sale,
or at negotiated prices. 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. The Selling
Stockholder may also sell all or a portion of the Shares pursuant to Rule 144
promulgated under the Securities Act of 1933, as amended, to the extent that
such sales may be made in compliance with such Rule. 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.
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.
____________________
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
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.
<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.
2
<PAGE>
INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The Company hereby incorporates in this Prospectus by reference the
following documents filed by the Company with the Commission:
(i) The Company's registration statement on Form 8-B as amended by
Form 8-B/A (Amendment No. 1) (Commission File No. 0-20421);
(ii) The Company's Annual Report on Form 10-K for the year ended
December 31, 1994 (Commission File No. 0-20421);
(iii) The Company's Current Reports on Form 8-K dated January
23, 1995, February 3, 1995 (as amended by Form 8-K/A), February 13,
1995, February 15, 1995, April 6, 1995 and April ___, 1995 (Commission
File No. 0-20421); and
(iv) (a) Condensed Pro Forma Combined Statement of Operations
(unaudited) of TCI/Liberty and Subsidiaries and accompanying Notes to
Condensed Pro Forma Combined Financial Statements, December 31, 1993
(unaudited) included in the Company's Current Report on Form 8-K,
dated April 6, 1994 (Commission File No. 0-5550); and (b) the
financial statements and notes thereto of TeleCable Corporation as of
December 31, 1993 and 1992 and for each of the two years in the period
ended December 31 1993, included in the Company's Current Report on
Form 8-K, dated August 26, 1994 (Commission File No. 0-20421).
All documents filed by the Company with the Commission 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 respective dates 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.
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).
3
<PAGE>
CERTAIN CONSIDERATIONS
The following factors, among others, should be considered carefully
before making an investment decision with respect to the Shares.
Results of Operations. Although the Company had net earnings for the
year ended December 31, 1994, the Company incurred a net loss for the year ended
December 31, 1993 and a loss from continuing operations for the year ended
December 31, 1992. 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) ($1,798 million, $1,858 million and $1,637 million for the
years ended December 31, 1994, 1993 and 1992, respectively) has historically
been sufficient to cover its interest expense ($785 million, $731 million and
$718 million for the years ended December 31, 1994, 1993 and 1992,
respectively). The Company's interest coverage ratio for the years ended
December 31, 1994, 1993, and 1992 was 229%, 254% and 228%, 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 also has investments
in cable and telecommunications operations and 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. TCIC and its predecessors have
been engaged in the cable television business since the early 1950's.
SELLING STOCKHOLDER
The Selling Stockholder is Daniel H. Garner. The Shares were acquired
by the Selling Stockholder pursuant to that certain Agreement and Plan of
Reorganization by and between the Company, Tempo DBS, Inc., an indirect wholly
owned subsidiary of the Company, Advanced Communications Corporation, a
corporation wholly owned by the Selling Stockholder, and the Selling
Stockholder, dated as of September 16, 1994 (the "Reorganization 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. The Selling Stockholder
has not had any position, office or other material relationship within
4
<PAGE>
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.
The Company has been advised that the Shares may be sold from time to
time by the Selling Stockholder, or by any pledgee or other successor in
interest to the Selling Stockholder, in regular brokerage transactions on a
national securities exchange or in the over-the-counter market, in transactions
directly with market makers, in privately negotiated transactions, or through a
combination of such methods at fixed prices (which may be changed), at market
prices prevailing at the time of sale, or at negotiated prices. The Selling
Stockholder, or any pledgee or other successor in interest, may effect such
transactions by selling Shares to or through broker-dealers, and such broker-
dealers may receive compensation in the form of discounts, concessions or
commissions from the Selling Stockholder, any pledgee or other successor in
interest, or the purchasers of Shares for whom such broker-dealers may act as
agent, or to whom they sell as principal, or both (which compensation, as to a
particular broker-dealer, may be in excess of customary commissions).
Any Shares offered hereby which qualify for sale pursuant to Rule 144
under the Securities Act may be sold under that rule rather than pursuant to any
of the foregoing means of distribution.
At the time a particular offer of Shares is made by the Selling
Stockholder or any pledgee or other successor in interest, a Prospectus
Supplement, if required, will be distributed setting forth the name or names of
any pledgee or other successor in interest (if applicable), and any other
required information.
Certain expenses in connection with the distribution of the Shares,
including fees and expenses of the Company's counsel and accountants, filing
fees and printing expenses, will be borne by the Company. The Selling
Stockholder will bear his own legal and accounting expenses, if any, as well as
all transfer taxes, discounts, concessions, commissions or other compensation
received by broker-dealers.
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.
5
<PAGE>
EXPERTS
The consolidated balance sheets of Tele-Communications, Inc. and
subsidiaries as of December 31, 1994 and 1993, 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, 1994, and all related
schedules, have been incorporated by reference herein in reliance upon the
reports 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 covering the
December 31, 1994 consolidated financial statements refer to the adoption of
Statement of Financial Accounting Standards No. 115, "Accounting for Investments
in Certain Debt and Equity Securities," in 1994.
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 Periods), which
appear in the current report on Form 8-K, as amended, of TCI Communications,
Inc. dated April 6, 1994, have been incorporated by reference herein in reliance
upon the report 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
covering the December 31, 1993 consolidated financial statements refers to a
change in the method of accounting for income taxes in 1993.
The consolidated balance sheet of TeleWest Communications plc and
subsidiaries as of 31 December 1994 and 1993, and the related consolidated
statements of operations and cash flows for each of the years in the three-year
period ended 31 December 1994, have been incorporated by reference herein in
reliance upon the report of KPMG, independent certified public accountants,
incorporated by reference herein, and upon the authority of said firm as experts
in accounting and auditing.
The consolidated balance sheets of QVC, Inc. and subsidiaries as of
January 31, 1994 and 1993, and the related consolidated statements of
operations, shareholders' equity, and cash flows for each of the years in the
three-year period ended January 31, 1994, which appear in the current report on
Form 8-K, as amended, of Tele-Communications, Inc. dated February 3, 1995, have
been incorporated by reference herein in reliance upon the report 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 covering the January 31, 1994
consolidated financial statements refers to a change in the method of accounting
for income taxes.
6
<PAGE>
The combined balance sheets of Cablevision (A combination of certain
cable television assets of Cablevision S.A., Televisora Belgrano S.A.,
Construred S.A. and Univent's S.A., as defined in Note 1) as of December 31,
1994 and 1993, and the related combined statements of operations and deficit and
cash flows for each of the years in the three-year period ended December 31,
1994, which appear in the current report on Form 8-K of Tele-Communications,
Inc., dated April ___, 1995, have been incorporated by reference herein in
reliance upon the report of KPMG Finsterbusch Pickenhayn Sibille, independent
certified public accountants, incorporated by reference herein, and upon the
authority of said firm as experts in accounting and auditing.
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.
7
<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 CERTAIN INFORMATION BY REFERENCE... 3
CERTAIN CONSIDERATIONS.............................. 4
THE COMPANY......................................... 4
SELLING STOCKHOLDER................................. 4
PLAN OF DISTRIBUTION................................ 5
LEGAL MATTERS....................................... 5
EXPERTS............................................. 6
</TABLE>
TELE-COMMUNICATIONS, INC.
CLASS A COMMON STOCK
($1.00 PAR VALUE)
_______________
PROSPECTUS
_______________
_______________, 1995
8
<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>
<CAPTION>
<S> <C>
Securities and Exchange Commission filing fee.. $12,974.14
/*/Blue sky fees and expenses.................. $10,000.00
/*/Accounting fees and expenses................ $15,000.00
/*/Legal fees and expenses..................... $12,500.00
/*/Printing expenses........................... $ 5,000.00
/*/Miscellaneous expenses...................... $ 2,025.86
---------
/*/Total.................................. $57,500.00
=========
</TABLE>
- --------
* estimated
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
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
II-2
<PAGE>
the payment of expenses incurred by a director or officer in advance
of the final disposition of the proceeding shall be made only upon
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
II-3
<PAGE>
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 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 against certain liabilities
under the Securities Act.
II-4
<PAGE>
ITEM 16. EXHIBITS.
<TABLE>
<CAPTION>
Exhibit
Number Description
------ -----------
<S> <C>
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. Commission File No. 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 KPMG
*23.4 Consent of KPMG Peat Marwick LLP
*23.5 Consent of KPMG Finsterbusch Pickenhayn Sibille
23.6 Consent of Price Waterhouse LLP
23.7 Consent of Sherman & Howard L.L.C. (included in Exhibit 5)
24 Power of Attorney (included herein on page II-8)
</TABLE>
- --------
* To be filed by amendment
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
II-6
<PAGE>
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 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 April
17, 1995.
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.
<TABLE>
<CAPTION>
Signature Title Date
--------- ----- ----
<S> <C> <C>
/s/ BOB MAGNESS Chairman of the Board April 17, 1995
- ------------------------- and Director
Bob Magness
/s/ JOHN C. MALONE Chief Executive Officer, April 17, 1995
- ------------------------- President, and Director
John C. Malone (Principal Executive Officer)
</TABLE>
II-8
<PAGE>
<TABLE>
<S> <C> <C>
/s/ DONNE F. FISHER Executive Vice President,
- ------------------------- Treasurer, and Director April 17, 1995
Donne F. Fisher (Principal Financial Officer and
Principal Accounting Officer)
_________________________ Director April __, 1995
John W. Gallivan
_________________________ Director April __, 1995
Kim Magness
_________________________ Director April __, 1995
Robert A. Naify
/s/ JEROME H. KERN Director April 17, 1995
- -------------------------
Jerome H. Kern
/s/ ANTHONY L. COELHO Director April 17, 1995
- -------------------------
Anthony L. Coelho
/s/ R.E. TURNER Director April 17, 1995
- -------------------------
R.E. Turner
</TABLE>
II-9
<PAGE>
<TABLE>
<CAPTION>
EXHIBIT INDEX
Page Number in
Exhibit Sequentially
Number Description Numbered Copy
------ ----------- -------------
<S> <C> <C>
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. Commission
File No. 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 KPMG
/*/23.4 Consent of KPMG Peat Marwick LLP
/*/23.5 Consent of KPMG Finsterbusch Pickenhayn Sibille
23.6 Consent of Price Waterhouse LLP
23.7 Consent of Sherman & Howard L.L.C.
(included in Exhibit 5)
24 Power of Attorney (included herein on
page II-8)
</TABLE>
- --------
/*/ to be filed by amendment
II-10
<PAGE>
EXHIBIT 23.6
CONSENT OF INDEPENDENT ACCOUNTANTS
----------------------------------
We hereby consent to the incorporation by reference in the Prospectus
constituting part of the Registration Statement on Form S-3 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
April 19, 1995
