-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NJzjOIcllnlEpQmDVL8E/8H2fhQhbc3KTlb2QrS6YIj42C83VWGzRxArS7dh97wU 4n/GA1E4DpOw1q7KXVmjFQ== 0000940180-98-000500.txt : 19980507 0000940180-98-000500.hdr.sgml : 19980507 ACCESSION NUMBER: 0000940180-98-000500 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 19980506 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 19980506 SROS: NASD FILER: COMPANY DATA: COMPANY CONFORMED NAME: TCI COMMUNICATIONS INC CENTRAL INDEX KEY: 0000096903 STANDARD INDUSTRIAL CLASSIFICATION: CABLE & OTHER PAY TELEVISION SERVICES [4841] IRS NUMBER: 840588868 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-05550 FILM NUMBER: 98611753 BUSINESS ADDRESS: STREET 1: TERRACE TOWER II STREET 2: 5619 DTC PKWY CITY: ENGLEWOOD STATE: CO ZIP: 80111 BUSINESS PHONE: 3032675500 MAIL ADDRESS: STREET 1: TERRACE TOWER II STREET 2: 5619 DTC PKWY CITY: ENGLEWOOD STATE: CO ZIP: 80111 FORMER COMPANY: FORMER CONFORMED NAME: TELE COMMUNICATIONS INC DATE OF NAME CHANGE: 19920703 8-K 1 FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report: May 6, 1998 Date of Earliest Event Reported: April 30, 1998 TCI COMMUNICATIONS, INC. (Exact name of registrant as specified in its charter) DELAWARE (State or other jurisdiction of incorporation) 0-5550 84-0588868 (Commission File Number) (I.R.S. Employer Identification No.) Terrace Tower II 5619 DTC Parkway Englewood, Colorado 80111-3000 (Address of principal executive offices, including zip code) Registrant's telephone number, including area code: (303) 267-5500 ITEM 5. OTHER EVENTS. Pursuant to a registration statement on Form S-3 (File No. 333-44745) (as amended, the "Registration Statement") filed with the Securities and Exchange Commission (the "Commission") under the Securities Act of 1933, as amended (the "Act"), and declared effective by the Commission on February 13, 1998, TCI Communications, Inc. (the "Registrant") has registered its senior, senior subordinated and subordinated debt securities (the "Debt Securities"), and Tele-Communications, Inc., a Delaware corporation (the "Parent"), has registered (i) shares of its Series Preferred Stock, which may be issued in the form of depositary shares evidenced by depositary receipts if the Parent elects to issue fractional interests in shares of a series of Series Preferred Stock, (ii) shares of its Tele-Communications, Inc. Series A TCI Group Common Stock, par value $1.00 per share ("Series A TCI Group Common Stock"), (iii) shares of Series A TCI Group Common Stock issuable upon conversion of Debt Securities of the Registrant or upon conversion of Series Preferred Stock of the Parent, and (iv) any guarantees of the Parent with respect to Debt Securities of the Company, all for delayed or continuous offering to the public pursuant to Rule 415 under the Act for a maximum aggregate initial offering price of $3 billion (or the equivalent thereof denominated in one or more foreign currencies or currency units). Reference is made to the Registration Statement for further information concerning the terms of the securities (including the Debt Securities) registered pursuant to the Registration Statement and the offering thereof. An indenture (the "Indenture"), substantially in the form of Exhibit 4.1 to the Registration Statement was executed as of February 19, 1998, between the Registrant and The Bank of New York, as Trustee, relating to senior Debt Securities of the Registrant. The definitive Indenture is incorporated by reference as Exhibit 4.1 hereto. On April 30, 1998, an underwriting agreement (the "Underwriting Agreement"), substantially in the form of Exhibit 1.2 to the Registration Statement, was executed by the Registrant and Credit Suisse First Boston Corporation and Lehman Brothers Inc. as representatives of the several underwriters named in the Underwriting Agreement (the "Underwriters"), providing for the sale by the Registrant to, and the offering to the public by, the Underwriters of $750,000,000 aggregate principal amount of the Registrant's 6.375% Senior Notes due May 1, 2003 (the "2003 -2- Notes") which are a series of senior Debt Securities. The net proceeds to the Registrant from the sale of the 2003 Notes will be $745,605,000. The definitive Underwriting Agreement is filed as Exhibit 1.1 hereto. The 2003 Notes will be issued pursuant to the Indenture. The description of certain provisions of the Indenture and the 2003 Notes and information concerning the terms of their purchase and offering to the public by the Underwriters, are incorporated herein by reference (i) to the section entitled "Description of Debt Securities -- Senior Debt Securities" of the Prospectus, dated April 22, 1998 (the "Base Prospectus"), and (ii) to the sections entitled "Description of Notes" and "Underwriting" in the Prospectus Supplement thereto, dated April 30, 1998, each of which has been filed with the Commission pursuant to Rule 424(b)(5) under the Act. The form of 2003 Note is filed as Exhibit 4.2 hereto. Pursuant to Item 601(a) of Regulation S-K promulgated by the Commission ("Regulation S-K"), the Registrant filed as Exhibit 5 to the Registration Statement an opinion, dated February 11, 1998, rendered to the Registrant by Stephen M. Brett, Esq., Executive Vice President and General Counsel of the Registrant, as to the matters referred to in Item 601(b)(5)(i) of Regulation S-K with respect to the Debt Securities generally. On May 6, 1998, Baker & Botts, L.L.P. rendered to the Registrant an opinion (the "Opinion") as to such matters specifically relating to the 2003 Notes. A copy of the Opinion is filed as Exhibit 5.1 hereto and includes the consent of Baker & Botts, L.L.P. (the "Consent") to the filing of the Opinion as Exhibit 5.1 hereto and the incorporation by reference thereof into the Registration Statement. The Registrant is filing this Current Report on Form 8-K in order to cause the Underwriting Agreement, the Indenture, the Opinion and Consent to be incorporated into the Registration Statement by reference. By filing this Current Report on Form 8-K, however, the Registrant does not believe that any of the documents listed in the previous sentence or the information set forth herein represent, either individually or in the aggregate, a "fundamental change" (as such term is used in Item 512(a)(1)(ii) of Regulation S-K) in the information set forth in the Registration Statement. -3- ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. Exhibits -------- 1.1 Underwriting Agreement, dated April 30, 1998, between Credit Suisse First Boston Corporation and Lehman Brothers Inc. as representatives of the several underwriters named therein and the Registrant. 4.1 Indenture, dated as of February 19, 1998, between The Bank of New York and the Registrant (incorporated herein by reference to Exhibit 4.1 of the Registrant's Current Report on Form 8-K, dated February 24, 1998 (Commission File No. 0- 5550)). 4.2 Form of 6.375% Senior Note due May 1, 2003. 5.1 Opinion, dated May 6, 1998, of Baker & Botts, L.L.P., counsel to the Registrant, as to validity of the 6.375% Senior Notes due May 1, 2003. 23.1 Consent of Baker & Botts, L.L.P. (included in Exhibit 5.1). -4- SIGNATURES ---------- Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. Dated: May 6, 1998 TCI COMMUNICATIONS, INC. (Registrant) By /s/ Stephen M. Brett --------------------------------- Name: Stephen M. Brett Title: Executive Vice President -5- EXHIBIT INDEX ------------- Exhibits -------- 1.1 Underwriting Agreement, dated April 30, 1998, between Credit Suisse First Boston Corporation and Lehman Brothers Inc. as representatives of the several underwriters named therein and the Registrant. 4.1 Indenture, dated as of February 19, 1998, between The Bank of New York and the Registrant (incorporated herein by reference to Exhibit 4.1 of the Registrant's Current Report on Form 8-K, dated February 24, 1998 (Commission File No. 0- 5550)). 4.2 Form of 6.375% Senior Note due May 1, 2003. 5.1 Opinion, dated May 6, 1998, of Baker & Botts, L.L.P., counsel to the Registrant, as to validity of the 6.375% Senior Notes due May 1, 2003. 23.1 Consent of Baker & Botts, L.L.P. (included in Exhibit 5.1). -6- EX-1.1 2 UNDERWRITING AGREEMENT TCI COMMUNICATIONS, INC. UNDERWRITING AGREEMENT 6.375% SENIOR NOTES DUE MAY 1, 2003 April 30, 1998 Credit Suisse First Boston Corporation Lehman Brothers Inc. (as Representatives of the several Underwriters named in Exhibit B) c/o Credit Suisse First Boston Corporation 11 Madison Avenue New York, New York 10010-3629 Dear Sirs: TCI Communications, Inc., a Delaware corporation (the "Company"), proposes to issue and sell $750,000,000 principal amount of its 6.375% Senior Notes due May 1, 2003 (the "Offered Securities") pursuant to an indenture, dated as of February 19, 1998 (as the same may be amended or supplemented, the "Indenture"), with The Bank of New York, as trustee (the "Trustee"). Each Offered Security will be issuable in the denominations and shall have the terms set forth in Exhibit A. The term "Underwriters" as used herein will mean and refer collectively to one or more of the several Underwriters named in Exhibit B (and any substitute underwriter pursuant to Section 9 hereof), the term "Underwriter" will refer to any of the several Underwriters named in Exhibit B (and any substitute underwriter pursuant to Section 9 hereof), and the term "Representatives" will refer to you in your capacity as the Representatives of the several Underwriters or, in the event no Representatives shall have been appointed, in your capacity as Underwriters. Any reference to you in this Agreement shall be solely in your capacity as Representatives. The Company confirms as follows its agreement with you and the Underwriters. 1. Registration Statement and Prospectus: The Company and Tele- Communications, Inc., a Delaware corporation (the "Parent"), have filed with the Securities and Exchange Commission (the "Commission"), in accordance with the Securities Act of 1933, as amended, and the rules and regulations of the Commission promulgated thereunder (collectively called the "Act"), a shelf registration statement on Form S-3 (File No. 333-44745), including a prospectus, relating to, among other securities, debt securities of the Company ("Debt Securities") issuable from time to time in one or more series, including the Offered Securities, guarantees of the Parent that may be issued in respect of Debt Securities, and shares of Tele-Communications, Inc. Series A TCI Group Common Stock, par value $1.00 per share, of the Parent issuable from time to time upon conversion of convertible Debt Securities, which has become effective under the Act, has filed with the Commission a preliminary prospectus supplement specifically relating to the Offered Securities pursuant to Rule 424 under the Act and will promptly file with the Commission pursuant to Rule 424(b) under the Act an additional prospectus supplement relating to the Offered Securities. As used in this Agreement, the term "Registration Statement" means such shelf registration statement, including exhibits and financial statements and schedules and documents incorporated by reference therein, as amended or supplemented to the date hereof and, in the case of references to the Registration Statement as of a date subsequent to the date hereof, as amended or supplemented as of such date. The term "Basic Prospectus" means the prospectus, dated April 22, 1998, as filed with the Commission pursuant to Rule 424 under the Act and forming part of the Registration Statement. The term "Prospectus" means the Basic Prospectus together with the prospectus supplement specifically relating to the Offered Securities as filed with the Commission pursuant to Rule 424 under the Act and any information deemed to be a part thereof pursuant to Rule 434 under the Act. The term "preliminary prospectus" means the preliminary prospectus supplement specifically relating to the Offered Securities together with the Basic Prospectus. Any reference herein to any preliminary prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of such preliminary prospectus or the Prospectus, as the case may be, and any reference herein to any amendment or supplement to any preliminary prospectus or the Prospectus, except the reference in Section 4(c), shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended (the "Exchange Act"), and so incorporated by reference. 2. Agreements to Sell and Purchase: The Company agrees to sell to the Underwriters, and upon the basis of the representations, warranties and agreements of the Company herein contained and subject to the terms and conditions of this Agreement each of the Underwriters agrees to purchase from the Company, severally and not jointly, the principal amount of Offered Securities set forth opposite each Underwriter's respective name in Exhibit B, at a purchase price of 99.414% of the principal amount of the Offered Securities, plus accrued interest from May 6, 1998. With respect to any of the Offered Securities purchased by the Underwriters hereunder that the Underwriters continue to own or hold at any time on or after the 90th day following the Closing Date (as defined in Section 3), the Underwriters agree that upon receipt of written notice from the Company of its intention to bid for or purchase any Offered Security or any security of the same class and series as the Offered Securities or to take any other action, directly or indirectly, the taking of which would be proscribed by Regulation M promulgated by the Commission under the Exchange Act (or any successor or equivalent rule or regulation) during the distribution of the Offered Securities, the Underwriters will, and will cause their "affiliated purchasers" (as defined in Rule 100 of said Regulation) to, cease distributing the Offered Securities for such period of time as the Company may deem necessary so that the action or actions proposed to be taken, directly or indirectly, by it may be taken in full compliance with such Regulation (or any successor or equivalent rule or regulation). 3. Delivery and Payment: Delivery of and payment for the Offered Securities shall be made at 10:00 a.m., New York time, on May 6, 1998 (such time and date are referred to herein as 2 the "Closing Date"), at the offices of Baker & Botts, L.L.P., 599 Lexington Avenue, New York, New York 10022. The Closing Date and the place of delivery of and payment for the Offered Securities may be varied by agreement between you and the Company. Delivery of the Offered Securities (registered in the name of Cede & Co., as nominee of The Depository Trust Company ("DTC") in such denominations as may be directed by DTC) shall be made to you against payment by you of the purchase price therefor by cashier or official bank check or checks payable to the order of the Company in, or by wire transfer to an account specified by the Company of, same day funds. 4. Agreements of the Company: The Company agrees with the Underwriters as follows: (a) The Company will notify the Underwriters promptly, and (if requested by the Underwriters in writing) will confirm such advice in writing, during the period of the distribution of the Offered Securities (1) of the effectiveness of any amendment to the Registration Statement and of the filing of any supplement to the Prospectus, (2) of any comments of the Commission regarding the Registration Statement or the Prospectus (or any of the documents incorporated by reference therein) or of any request by the Commission for amendments or supplements to the Registration Statement or the Prospectus or for additional information, (3) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or the initiation or threatening of any proceedings for that purpose, (4) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Offered Securities for offer or sale in any jurisdiction or the initiation or threatening of any proceedings for such purpose and (5) of the happening of any event during the period mentioned in paragraph (d) below which makes any statement of a material fact made in the Registration Statement or the Prospectus (as theretofore amended or supplemented) untrue or which requires the making of any changes in the Registration Statement or the Prospectus (as theretofore amended or supplemented) in order to make the statements therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not misleading. The Company will use its reasonable best efforts to prevent the issuance of any order suspending the effectiveness of the Registration Statement or suspending the qualification of the Offered Securities for offer or sale in any jurisdiction, and if any such order is issued, the Company will make every reasonable effort to obtain the withdrawal of such order at the earliest possible moment. (b) The Company will furnish to each Underwriter, without charge, one conformed copy of the Registration Statement and any post-effective amendment thereto filed in connection with the offering of the Offered Securities, including all financial statements and schedules, exhibits and documents incorporated therein by reference (including exhibits incorporated therein by reference to the extent not previously furnished to the Underwriters). (c) The Company will give you advance notice of its intention to file any amendment or supplement to the Registration Statement or the Prospectus with respect to the 3 Offered Securities, and will not file any such amendment or supplement to which you shall reasonably object in writing. (d) During the period of time that the Prospectus is required by law to be delivered, the Company will deliver to each Underwriter, without charge, as many copies of the Prospectus or any amendment or supplement thereto as such Underwriter may reasonably request. The Company consents to the use of the Prospectus or any amendment or supplement thereto by the Underwriters and by all dealers to whom the Offered Securities may be sold, both in connection with the offering or sale of the Offered Securities and for such period of time thereafter as the Prospectus is required by law to be delivered in connection therewith. If during such period of time any event shall occur which in the judgment of the Company should be set forth (or incorporated by reference) in the Prospectus in order to make the statements therein, in light of the circumstances when the Prospectus is delivered to a purchaser, not misleading, or if it is necessary to supplement or amend the Prospectus to comply with law, the Company will forthwith prepare and duly file with the Commission an appropriate supplement or amendment thereto, and forthwith file all reports and any definitive proxy statement or information statement required to be filed by the Company with the Commission pursuant to Sections 13(a), 13(c) or 14 of the Exchange Act subsequent to the date of the Prospectus and during such period, and will deliver to each Underwriter, without charge, such number of copies thereof as such Underwriter may reasonably request. If during such period of time any event shall occur which in your judgment should be so set forth (or incorporated by reference) in the Prospectus, or which in your judgment makes it necessary to so supplement or amend the Prospectus, the Company will consult with you concerning the necessity of filing with the Commission a supplement or an amendment to the Prospectus or a report pursuant to Sections 13(a), 13(c) or 14 of the Exchange Act. (e) Prior to any public offering of the Offered Securities by the Underwriters, the Company will cooperate with you and your counsel in connection with the registration or qualification of the Offered Securities for offer and sale under the securities or Blue Sky laws of, and the determination of the eligibility of the Offered Securities for investment under the laws of, such jurisdictions as you request; provided, that in no event shall the Company be obligated to qualify to do business as a foreign corporation or as a securities dealer in any jurisdiction where it is not now so qualified, to conform its capitalization or the composition of its assets to the securities or Blue Sky laws of any jurisdiction or to take any action which would subject it to taxation or general service of process in any jurisdiction where it is not now so subject. The Company will pay all reasonable fees and expenses (including reasonable counsel fees and expenses) relating to qualification of the Offered Securities under such securities or Blue Sky laws and in connection with the determination of the eligibility of the Offered Securities for investment under the laws of such jurisdictions as you may designate. 4 (f) The Company will make generally available to its security holders and to you consolidated earnings statements (which need not be audited) that satisfy the provisions of Section 11(a) of the Act and Rule 158 thereunder. (g) The Company will pay all expenses in connection with (1) the preparation, printing and filing of the Registration Statement, any preliminary prospectus, the Prospectus, any legal investment memorandum and Blue Sky memorandum as contemplated by Section 4(e), (2) the preparation, issuance and delivery of the Offered Securities (other than transfer taxes) and the execution and delivery of the Indenture, (3) the printing of any dealer agreement, (4) furnishing such copies of the Registration Statement, the Prospectus and any preliminary prospectus, and all amendments and supplements thereto, including any term sheets delivered by the Company pursuant to Rule 434 under the Act, as may be requested for use in connection with the offering and sale of the Offered Securities by dealers to whom Offered Securities may be sold, and (5) any fees paid to rating agencies, if any, selected by the Company in connection with the rating of the Offered Securities. (h) If this Agreement is terminated by you because any condition to the obligations of the Underwriters set forth in Section 7 hereof is not satisfied or because of any failure or refusal on the part of the Company to comply with the terms hereof or if for any reason the Company shall be unable to perform its obligations hereunder, the Company will reimburse the Underwriters for all out-of-pocket expenses (including the fees and expenses of your counsel) reasonably incurred by the Underwriters in connection herewith. The Company will not in any event be liable to you or any of the Underwriters for damages on account of loss of anticipated profits. (i) From the date hereof to and including the Closing Date, the Company will not offer or sell, or contract to sell, any Debt Securities of the Company with a maturity of more than one year, including additional Offered Securities, pursuant to a public offering without your prior written consent. 5. (a) Representations and Warranties of the Company: The Company represents and warrants to each Underwriter that: (i) the documents incorporated by reference in the Registration Statement and the Prospectus, when they were filed (or, if an amendment with respect to any such document was filed, when such amendment was filed) with the Commission, conformed in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission promulgated thereunder, and any further documents so filed and incorporated by reference during the period of the distribution of the Offered Securities will, when they are filed with the Commission, conform in all material respects to the requirements of the Exchange Act and the rules and regulations of the Commission promulgated thereunder, none of such documents, when it was filed (or, if an amendment with respect to any such document was filed, when such amendment was filed), contained an untrue statement of a material fact 5 or omitted to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading; and no such further document, when it is filed, will contain an untrue statement of a material fact or will omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they are made, not misleading; (ii) the Registration Statement, when declared effective by the Commission, complied in all material respects with the requirements of the Act; each preliminary prospectus, if any, relating to the Offered Securities, filed pursuant to Rule 424 or Rule 434 under the Act, will comply when so filed in all material respects with the Act; and when the Prospectus or any term sheet is first filed with the Commission pursuant to Rule 424 or Rule 434 and as of the Closing Date, the Registration Statement and the Prospectus (as amended or supplemented, if applicable) will comply in all material respects with the requirements of the Act and the Indenture will comply in all material respects with the requirements of the Trust Indenture Act of 1939, as amended (the "Trust Indenture Act"). When it was declared effective by the Commission, the Registration Statement did not, and as of the date the Prospectus is first filed with the Commission pursuant to Rule 424 or Rule 434 and as of the Closing Date the Registration Statement (as amended or supplemented, if applicable) will not, contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein not misleading. When the Prospectus is first filed with the Commission pursuant to Rule 424 or Rule 434 and as of the Closing Date, the Prospectus (as amended or supplemented, if applicable) will not contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. Notwithstanding the foregoing, this representation and warranty does not apply to statements or omissions in the Registration Statement or the Prospectus or any preliminary prospectus made in reliance upon information furnished to the Company in writing by any Underwriter expressly for use therein or to that part of the Registration Statement which consists of the Statements of Eligibility on Form T-1 under the Trust Indenture Act of the trustees for the Debt Securities; (iii) the Offered Securities and the Indenture have been duly authorized by the Company and each will conform to the descriptions thereof in the Prospectus; (iv) the issuance and sale of the Offered Securities and the fulfillment of the terms of this Agreement will not result in a breach of any of the terms or provisions of, or constitute a default under, the Company's charter or by-laws or any indenture, mortgage, deed of trust or other material agreement or instrument to which the Company or any of its significant subsidiaries (as such term is defined in Rule 1.02(w) of Regulation S-X) is now a party or by which it is bound, or any order of 6 any court or governmental agency or authority entered in any proceeding to which the Company or any of its significant subsidiaries was or is now a party or by which it is bound; (v) KPMG Peat Marwick LLP, the Company's auditors, are independent accountants as required by the Act; (vi) so long as may be required for the distribution of the Offered Securities by the Underwriters or by any dealers that participate in the distribution thereof, the Company will comply with all requirements under the Exchange Act relating to the timely filing with the Commission of its reports pursuant to Sections 13(a) and 13(c) of the Exchange Act and of its proxy statements pursuant to Section 14 of the Exchange Act; and (vii) except to the extent set forth in the Prospectus, the Company has not received any notice of, nor does it have any actual knowledge of, any failure by it or any of its significant subsidiaries to be in substantial compliance with all existing statutes and regulations applicable to it or such subsidiaries, which failure would materially and adversely affect the conduct of the business of the Company and its subsidiaries, considered as a whole. (b) Representations and Warranties of the Underwriters. Each Underwriter, severally and not jointly, represents and agrees that: (i) (X) it has not offered or sold and prior to the date six months after the date of issue of any Offered Securities will not offer or sell any Offered Securities to persons in the United Kingdom except to persons whose ordinary activities involve them in acquiring, holding, managing or disposing of investments (as principal or agent) for the purposes of their businesses or otherwise in circumstances which have not resulted and will not result in an offer to the public in the United Kingdom within the meaning of the Public Offers of Securities Regulations 1995; (Y) it has complied and will comply with all applicable provisions of the Financial Service Act 1986 with respect to anything done by it in relation to any Offered Securities in, from or otherwise involving the United Kingdom; and (Z) it has only issued or passed on and will only issue or pass on in the United Kingdom any document received by it in connection with the issue of the Offered Securities to a person who is of a kind described in Article 11(3) of the Financial Services Act 1986 (Investment Advertisements) (Exemptions) Order 1996 (as amended) or is a person to whom such document may otherwise lawfully be issued or passed on. 7 (ii) Without prejudice to paragraph (i) above, it has not and will not offer, sell or deliver any of the Offered Securities, directly or indirectly, or distribute the Prospectus or any other offering material related to the Offered Securities, in or from any jurisdiction except under circumstances that will result in compliance with the applicable laws and regulations thereof and will not impose any obligations on the Company except as set forth herein. 6. Indemnification: The Company agrees to indemnify and hold harmless each Underwriter, and each person, if any, who controls each Underwriter within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act, from and against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, in light of the circumstances under which they were made) not misleading, except insofar as such losses, claims, damages, liabilities or expenses arise out of or are based upon any such untrue statement or omission or allegation thereof based upon information furnished in writing to the Company by any Underwriter through you expressly for use therein; provided, however, the Company shall not indemnify any Underwriter or any person who controls such Underwriter from any such losses, claims, damages or liabilities alleged by any person who purchased Offered Securities from such Underwriter if the untrue statement, omission or allegation thereof upon which such losses, claims, damages or liabilities are based was made in: (i) any preliminary prospectus, if a copy of the Prospectus (as then amended or supplemented if the Company shall have furnished any amendments or supplements thereto) was not sent or given by or on behalf of such Underwriter to such person at or prior to the written confirmation of the sale of Offered Securities to such person (excluding those sales of the Offered Securities in the secondary market where no Prospectus delivery is required by the Act), and if the Prospectus (as so amended or supplemented) corrected the untrue statement or omission giving rise to such loss, claim, damage or liability; (ii) any Prospectus used by such Underwriter or any person who controls such Underwriter, after such time as the Company advised you that the filing of a post-effective amendment or supplement thereto was required, except the Prospectus as so amended or supplemented; or (iii) any Prospectus used after such time as the obligation of the Company to keep the same current and effective has expired. This indemnity will be in addition to any liability which the Company may otherwise have. If any action or proceeding (including any governmental investigation) shall be brought or asserted against any Underwriter or any person controlling an Underwriter in respect of which indemnity may be sought from the Company, such Underwriter or such controlling person shall promptly notify the Company in writing, and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to you and the payment of all expenses. Any omission so to notify the Company shall not, however, relieve the Company from any liability which it may have to any indemnified party otherwise than under this Section 6. Any such Underwriter or any such person controlling an Underwriter shall have the right to employ separate counsel in any such action or proceeding and to participate in the defense thereof, but the fees and expenses of such separate counsel shall be such Underwriter's expense or the expense of such 8 controlling person unless (a) the Company has agreed to pay such fees and expenses or (b) the Company shall have failed to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to you in any such action or proceeding or (c) the named parties to any such action or proceeding (including any impleaded parties) include both such Underwriter or such controlling person and the Company, and you shall have been advised by your counsel that there may be a conflict of interest between such Underwriter or controlling person and the Company in the conduct of the defense of such action (in which case, if such Underwriter or such controlling person notifies the Company in writing that it elects to employ separate counsel at the expense of the Company, the Company shall not have the right to assume the defense of such action or proceeding on behalf of such Underwriter or such controlling person), it being understood, however, that the Company shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (unless the members of such firm are not admitted to practice in a jurisdiction where an action is pending, in which case the Company shall pay the reasonable fees and expenses of one additional firm of attorneys to act as local counsel in such jurisdiction, provided the services of such counsel are substantially limited to that of appearing as attorneys of record) at any time for all indemnified parties, which firm shall be designated in writing by you. The Company shall not be liable for any settlement of any such action or proceeding effected without its written consent, but if settled with its written consent, or if there be a final judgment for the plaintiff in any such action or proceeding, the Company agrees to indemnify and hold harmless each Underwriter and any such controlling person from and against any loss or liability by reason of such settlement or judgment. Each Underwriter severally agrees to indemnify and hold harmless the Company, its directors and each of its officers, and each person, if any, who controls the Company within the meaning of either Section 15 of the Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with respect to information furnished in writing by such Underwriter through any Representative expressly for use in the Registration Statement, the Prospectus, or any amendment or supplement thereto, or any preliminary prospectus. In case any action or proceeding shall be brought against the Company or its directors or officers or any such controlling person, in respect of which indemnity may be sought against one or more of the several Underwriters, such Underwriters acting through the Representatives shall have the rights and duties given to the Company, and the Company or its directors or officers or such controlling person shall have the rights and duties given to you and the several Underwriters, by the preceding paragraph. If the indemnification provided for in this Section 6 is unavailable to an indemnified party under the first or third paragraph hereof in respect of any losses, claims, damages or liabilities referred to therein (other than by reason of such indemnified party's failure to comply with the first sentence of the second paragraph of this Section 6), then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages or liabilities (i) in such proportion as is appropriate to reflect the relative benefits received by the Company on the one hand and the 9 Underwriters on the other hand from the offering of the Offered Securities or (ii) if the allocation provided by clause (i) above is not permitted by applicable law, in such proportion as is appropriate to reflect not only the relative benefits referred to in clause (i) above but also the relative fault of the Company on the one hand and the Underwriters on the other in connection with the statements or omissions which resulted in such losses, claims, damages or liabilities, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and the Underwriters on the other in connection with the Offering of the Offered Securities shall be deemed to be in the same proportion as the total net proceeds from the offering of the Offered Securities received by the Company bear to the total underwriting discounts received by the Underwriters in respect thereof. The relative fault of the Company on the one hand and of the Underwriters on the other shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or by the Underwriters through you and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. The amount paid or payable by a party as a result of the losses, claims, damages and liabilities referred to above shall be deemed to include, subject to the limitations set forth in the second paragraph of this Section 6, any legal or other fees or expenses reasonably incurred by such party in connection with investigating or defending any action or claim. The Company and each Underwriter agree that it would not be just and equitable if contribution pursuant to this Section 6 were determined by pro rata allocation or by any other method of allocation which does not take account of the equitable considerations referred to in the immediately preceding paragraph. Notwithstanding the provisions of this Section 6, the Underwriters shall not be required to contribute any amount in excess of the amount by which the total price at which the Offered Securities were offered to the public exceeds the amount of any damages which the Underwriters have otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The indemnity and contribution agreements contained in this Section 6 and the representations and warranties of the Company contained in this Agreement shall remain operative and in full force and effect regardless of (a) any investigation made by or on behalf of the Underwriters, by or on behalf of any person controlling any Underwriter or by or on behalf of the Company, (b) acceptance of any of the Offered Securities and payment therefor or (c) any termination of this Agreement. 7. Conditions of the Underwriters' Obligations: The Underwriters' obligations hereunder are subject to the following conditions: (a) at the Closing Date, (i) no stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall be pending or threatened by the Commission; and you shall have received a certificate, dated 10 the Closing Date and signed by the Chairman of the Board, the President, an Executive Vice President or a Senior Vice President of the Company (who may, as to threatened proceedings, rely upon the best of his information and belief), to that effect and to the effect set forth in clause (e) of this Section 7, and (ii) the rating assigned by a nationally recognized securities rating organization in the United States to the senior debt securities of the Company as of the date of this Agreement shall not have been lowered since that date; (b) you shall have received opinions, dated the Closing Date and reasonably satisfactory to counsel retained for the Underwriters, (A) from Cole, Raywid & Braverman, L.L.P. or such other special communications counsel for the Company as may be reasonably satisfactory to you, (B) from the General Counsel of the Company to the following effect and covering such additional matters as you may reasonably request: (i) the Company and each of its significant subsidiaries is a corporation duly organized, validly existing and in good standing under the laws of the jurisdiction of its incorporation and has the corporate power and authority to carry on its business as described in the Prospectus (as amended or supplemented, if applicable) and the Company has the corporate power and authority to execute and deliver and perform its obligations under this Agreement and to issue and sell the Offered Securities as contemplated by this Agreement; (ii) the Company and each of its significant subsidiaries is duly qualified as a foreign corporation and is in good standing in each jurisdiction in which the failure to so qualify would, in the aggregate, have a material adverse effect upon the financial condition, results of operations, business or properties of the Company and its subsidiaries taken as a whole; (iii) all corporate proceedings legally required in connection with the authorization and issuance of the Offered Securities and the sale of the Offered Securities by the Company in accordance with the terms of this Agreement have been taken; (iv) to the best knowledge of such counsel, there is no legal or governmental proceeding pending or threatened against the Company or any of its subsidiaries which is required to be disclosed in the Prospectus (as amended or supplemented, if applicable) and is not so disclosed and correctly summarized therein; (v) to the best knowledge of such counsel, there is no contract or other document known to such counsel of a character required to be described in the Prospectus (as amended or supplemented, if applicable) or to be filed as an exhibit to the Registration Statement (or to a document incorporated by reference therein) that is not described or filed as required; 11 (vi) the execution and delivery of this Agreement and the Indenture, the issuance of the Offered Securities and the fulfillment of the terms herein and therein contained do not conflict with, or result in a breach of, or constitute a default under, the charter or by-laws of the Company or, to the best knowledge of such counsel, conflict in any material respect with, or result in a material breach of or constitute a material default under any material agreement, indenture or other instrument known to such counsel to which the Company or any of its significant subsidiaries is a party or by which it is bound, or result in a violation of any law, administrative regulation or court or governmental decree known to such counsel applicable to the Company or any of its subsidiaries, except that such counsel need not express any opinion with respect to (i) matters opined upon by special communications counsel and Sherman & Howard LLC or (ii) the federal securities laws, the Blue Sky or securities laws of any jurisdiction; and (vii) to the best knowledge of such counsel, neither the Registration Statement nor the Prospectus, as amended or supplemented, if applicable (except as to the financial statements and schedules and any other financial and statistical data contained and incorporated by reference in the Registration Statement or Prospectus, as to which no opinion need be expressed), contained, as of the date the Prospectus was first filed with the Commission pursuant to Rule 424, or contains, as of the Closing Date, any untrue statement of a material fact or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus (as amended or supplemented, if applicable), in light of the circumstances under which they were made,) not misleading. (C) from Sherman & Howard LLC, special counsel to the Company, to the following effect and covering such additional matters as you may reasonably request: (i) the execution and delivery of this Agreement and the Indenture, the issuance of the Offered Securities and the fulfillment of the terms herein and therein contained do not, to the best knowledge of such counsel, result in a material breach of or constitute a material default under any material agreement for borrowed money known to such counsel to which the Company or any of its significant subsidiaries is a party or by which it is bound; and (ii) the Company is not an "investment company" within the meaning of the Investment Company Act of 1940, as amended, and is not subject to regulation under such Act. and (D) from Baker & Botts, L.L.P., special counsel to the Company, or such other counsel to the Company as may be reasonably satisfactory to you, to the following effect and covering such additional matters as you may reasonably request: 12 (i) this Agreement and the Indenture have been duly authorized, executed and delivered by the Company; and the Indenture is a legal, valid and binding agreement of the Company enforceable in accordance with its terms, except (A) as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws affecting creditors' rights generally, and (B) that the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court before which any proceeding therefor may be brought; (ii) the Indenture has been duly qualified under, and complies in all material respects with the requirements of, the Trust Indenture Act; (iii) the Offered Securities, when executed and authenticated in accordance with the terms of the Indenture and delivered to and paid for by the Underwriters in accordance with this Agreement, will be legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except (A) as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws affecting creditors' rights generally, and (B) that the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court before which any proceeding therefor may be brought; (iv) the Registration Statement is effective under the Act and, to the best knowledge of such counsel, no stop order suspending the effectiveness of the Registration Statement has been issued and no proceeding for that purpose is pending or threatened by the Commission; and (v) the Offered Securities and the Indenture conform in all material respects as to legal matters to the descriptions thereof in the Prospectus. In addition, such counsel shall state that: "The Registration Statement and the Prospectus, as amended or supplemented, if applicable (except as to (x) the financial statements and schedules and any other financial and statistical data contained or incorporated by reference therein and (y) the documents incorporated or deemed to be incorporated by reference therein, as to which no opinion is expressed), complied, as of the date the Prospectus was first filed with the Commission pursuant to Rule 424, and comply, as of the date hereof, as to form in all material respects with the requirements of the Act and the rules and regulations of the Commission under the Act (the "Rules"). In passing upon the form of such documents, we have necessarily assumed the correctness and completeness of the statements made or included therein by the Company and take no responsibility for the accuracy, completeness or fairness of the statements contained therein except insofar as such statements relate to the 13 description of the Offered Securities and the Indenture or relate to us. However, in connection with the preparation of the Registration Statement and the Prospectus, we had conferences with certain officers and other representatives of the Company, and our examination of the Registration Statement and the Prospectus and our discussions in such conferences did not disclose to us any information (relying as to the materiality of any such information primarily upon officers and other representatives of the Company) which gave us reason to believe that either the Registration Statement or the Prospectus, as amended or supplemented, if applicable (except as to (x) the financial statements and schedules and any other financial and statistical data contained or incorporated by reference in the Registration Statement or the Prospectus and (y) the documents incorporated or deemed to be incorporated by reference therein, as to which no opinion is expressed), contained, as of the date the Prospectus was first filed with the Commission pursuant to Rule 424, or contains, as of the date hereof, any untrue statement of a material fact or omitted or omits to state any material fact required to be stated therein or necessary to make the statements therein (in the case of the Prospectus, as amended or supplemented, if applicable, in light of the circumstances under which they were made) not misleading." In giving such opinions, such counsel may rely (x) as to matters of fact, to the extent they deem proper, upon certificates of officers of the Company, public officials and others, and (y) as to matters of law if other than the United States or Colorado (in the case of Sherman & Howard LLC and General Counsel of the Company) or New York (in the case of Baker & Botts, L.L.P.), on the opinions of local counsel retained by them or the Company, provided that such counsel are satisfactory to you and counsel for the Underwriters; (c) you shall have received on the Closing Date from counsel retained by you on behalf of the Underwriters an opinion to the effect set forth in clauses (b)(D)(i) and (iii) and to the effect that the Registration Statement and the Prospectus, as amended or supplemented, if applicable, (except as to (x) the financial statements and schedules and any other financial and statistical data contained or incorporated by reference therein, and (y) the documents incorporated or deemed to be incorporated by reference therein, as to which no opinion need be expressed) comply as to form in all material respects with the Act. In addition, you shall have received on the Closing Date from such counsel an opinion with respect to the Registration Statement and the Prospectus in the form customarily given by such firm; (d) on the Closing Date you shall have received a letter addressed to the Representatives from KPMG Peat Marwick LLP, independent auditors for the Company, reasonably satisfactory to you; (e) the representations and warranties of the Company in this Agreement shall be true and correct on and as of the Closing Date; the Company shall have complied with all 14 agreements and satisfied all conditions on its part to be performed or satisfied at or prior to the Closing Date; and except as reflected in or contemplated by the Registration Statement and the Prospectus, since the respective dates as of which information is given in the Registration Statement and the Prospectus, there shall not have been, at the Closing Date, any material adverse changes in the condition (financial or otherwise), business, prospects or results of operations of the Company and its subsidiaries, considered as a whole; and (f) subsequent to the date of this Agreement, there shall not have occurred any change, or any development involving a prospective change, in or affecting particularly the business, prospects or financial affairs of the Company and its subsidiaries, considered as a whole which, in your reasonable judgment, is so material and adverse that it would be impracticable to proceed with the public offering or delivery of the Offered Securities on the terms and in the manner contemplated by the Prospectus. 8. Termination of Agreement: The obligation of the Underwriters to purchase the Offered Securities may be terminated at any time prior to the Closing Date by notice to the Company from you, without liability on the part of the Underwriters to the Company, if, on or prior to such date, (i) additional material governmental restrictions, not in force and effect on the date of this Agreement, shall have been imposed upon trading in securities generally or minimum or maximum prices shall have been generally established on the New York Stock Exchange or on the American Stock Exchange, or trading in securities generally shall have been suspended on either such exchange or trading in the common stock or debt securities of the Company in the over-the-counter market shall have been suspended or a general banking moratorium shall have been established by Federal or New York authorities, or (ii) a war involving the United States of America or other national calamity shall have occurred or shall have accelerated to such an extent as to affect adversely the marketability of the Offered Securities. 9. Default by One or More of the Underwriters: If one or more of the Underwriters shall fail on the Closing Date to purchase the Offered Securities that it or they are obligated to purchase hereunder (the "Defaulted Securities"), you shall have the right, within 24 hours thereafter, to make arrangements for one or more of the non-defaulting Underwriters, or any substitute underwriter, to purchase all, but not less than all, of the Defaulted Securities in such amounts as may be approved by you and upon the terms herein set forth; if however, you have not completed such arrangements within such 24- hour period, then: (a) if the principal amount of Defaulted Securities does not exceed 10% of the aggregate principal amount of Offered Securities, the non- defaulting Underwriters shall be obligated to purchase the full amount thereof in the proportions that their respective underwriting obligations hereunder bear to the underwriting obligations of all non-defaulting Underwriters, or (b) if the principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of Offered Securities, the Company shall be entitled for an additional 24- 15 hour period to find one or more substitute underwriters satisfactory to you in your reasonable discretion to purchase such Defaulted Securities. In the event of any such default either you or the Company shall have the right to postpone the Closing Date for a period not exceeding seven days in order to effect any required changes in the Registration Statement or Prospectus or in any other documents or arrangements relating to the purchase of the Offered Securities. If the principal amount of Defaulted Securities exceeds 10% of the aggregate principal amount of Offered Securities, and neither you nor the Company make arrangements pursuant to this Section 9 within the period stated for the purchase of the Defaulted Securities, this Agreement shall terminate without liability on the part of any non-defaulting Underwriter to the Company except as provided in Section 6. No action taken pursuant to this Section 9 shall relieve any defaulting Underwriter from liability in respect of its default. A substitute underwriter hereunder shall be an Underwriter for all purposes of this Agreement. 10. Miscellaneous: Notice given pursuant to any of the provisions of this Agreement shall be in writing and shall be mailed or delivered (a) to the Company at its principal executive offices, located at Terrace Tower II, 5619 DTC Parkway, Englewood, Colorado 80111-3000, Attention: Chief Financial Officer, Facsimile: (303) 488-3200 or (b) to you at Credit Suisse First Boston Corporation, 11 Madison Avenue, New York, New York 10010-3629, attention of: Transaction Advisory Group, Facsimile: (212) 325-8278. Any notice under Section 8 hereof may be made by facsimile transmission or telephone, but if so made shall be subsequently confirmed in writing. This Agreement has been and is made solely for the benefit of the Underwriters and the Company and of the controlling persons, directors and officers referred to in Section 6 hereof, and their respective successors and assigns, and no other person shall acquire or have any right under or by virtue of this Agreement. The term "successors and assigns" as used in this Agreement shall not include a purchaser, as such purchaser, of Offered Securities from any Underwriter. This Agreement shall be governed by and construed in accordance with the internal laws of the State of New York. 16 Please confirm that the foregoing correctly sets forth the agreement between the Company and the Underwriters. Very truly yours, TCI COMMUNICATIONS, INC. By: ______________________________ Name: Title: Confirmed and Accepted, as of the date first above written: Credit Suisse First Boston Corporation Lehman Brothers Inc. (as Representatives of the several Underwriters named in Exhibit B) BY: CREDIT SUISSE FIRST BOSTON CORPORATION By: ______________________________ Name: Title: 17 EXHIBIT A DEBT SECURITIES Designation: 6.375% Senior Notes due May 1, 2003 Issue Date: May 6, 1998 Maturity: May 1, 2003 Authorized Denominations: $1,000 and integral multiples thereof Interest Rate: 6.375% Interest Payment Dates: May 1 and November 1 (commencing November 1, 1998) Record Dates: April 15 and October 15 Sinking Fund: None Optional Redemption: None (unless, as described in the Prospectus, certain events occur involving United States Taxation). Other Specific Terms: Payment of additional amounts in certain circumstances as described in Prospectus. A-1 EXHIBIT B
PRINCIPAL AMOUNT UNDERWRITERS OF OFFERED SECURITIES - ------------ --------------------- Credit Suisse First Boston Corporation...................... $300,000,000 Lehman Brothers Inc......................................... $300,000,000 BancAmerica Robertson Stephens.............................. $ 21,000,000 Bear, Stearns & Co. Inc..................................... $ 21,000,000 Credit Lyonnais Securities (USA) Inc........................ $ 11,250,000 Deutsche Bank AG London..................................... $ 11,250,000 Goldman, Sachs & Co......................................... $ 21,000,000 Merrill Lynch, Pierce, Fenner & Smith Incorporated.......... $ 21,000,000 NationsBanc Montgomery Securities LLC....................... $ 11,250,000 Salomon Brothers Inc........................................ $ 21,000,000 Societe Generale............................................ $ 11,250,000 ------------ Total.............. $750,000,000 ============
B-1 EX-4.2 3 FORM OF 6.375% SENIOR NOTE DUE MAY 1, 2003 EXHIBIT 4.2 THIS NOTE IS A GLOBAL NOTE WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE OF A DEPOSITORY OR A SUCCESSOR DEPOSITORY. UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR NOTES IN DEFINITIVE FORM, THIS NOTE MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITORY TO A NOMINEE OF THE DEPOSITORY OR BY A NOMINEE OF THE DEPOSITORY TO THE DEPOSITORY OR ANOTHER NOMINEE OF THE DEPOSITORY OR BY THE DEPOSITORY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITORY OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY. UNLESS THIS NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE COMPANY (AS DEFINED BELOW) OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL, SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN. REGISTERED PRINCIPAL AMOUNT No. R- U.S.$________________ CUSIP: 872287AM9 ISIN: US872287AM91 Common Code No.: 8711461 TCI COMMUNICATIONS, INC. 6.375% SENIOR NOTE DUE MAY 1, 2003 TCI COMMUNICATIONS, INC., a Delaware corporation (the "Company"), promises to pay to CEDE & CO., or registered assigns the principal sum of ___________________ UNITED STATES DOLLARS (U.S.$___________) on May 1, 2003 (the "Stated Maturity") and to pay interest thereon at the rate per annum shown above. The Company will pay interest semiannually on May 1 and November 1 of each year (each, an "Interest Payment Date") and at Stated Maturity, commencing November 1, 1998. Interest on this Note (as defined below) will accrue from the most recent date to which interest has been paid or, if no interest has been paid, from May 6, 1998. If any Interest Payment Date or the Stated Maturity falls on a day that is not a Business Day, the related payment of principal or interest (including any additional amounts) shall be made on the next succeeding Business Day as if made on the date such payment was due, and no interest shall accrue on the amount so payable for the period from and after such Interest Payment Date or Stated Maturity, as the case may be. "Business Day" with respect to any place of payment means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which banking institutions in such place of payment are authorized or obligated by law to close. Interest will be computed on the basis of a 360-day year of twelve 30-day months. The Company will pay interest on the principal amount of this Note (except defaulted interest) to the person in whose name this Note is registered on each April 15 and October 15, respectively, preceding each Interest Payment Date and at Stated Maturity, as the case may be. Holders must surrender Notes to a Paying Agent to collect principal payments. The Company will pay principal and interest in money of the United States that at the time of payment is legal tender for payment of public and private debts. The Company may, however, pay principal and interest by its check payable in such money. It may mail an interest check to a holder's registered address. Initially, The Bank of New York, as trustee (the "Trustee"), at 101 Barclay Street, New York, New York 10286, will act as Paying Agent and Registrar. The Company may change any Paying Agent, Registrar or co-Registrar without notice. The Company or any of its Subsidiaries may act as Paying Agent, Registrar or co- Registrar. The Company has appointed Kredietbank S.A. Luxembourgeoise or its successor as paying agent and transfer agent in Luxembourg (the "Luxembourg Paying/Transfer Agent") with respect to the Notes, and as long as the Notes are listed on the Luxembourg Stock Exchange, the Company shall (i) maintain a paying and transfer agent in Luxembourg and (ii) publish any change in the Luxembourg Paying/Transfer Agent in Luxembourg. Reference is hereby made to the further provisions of this Note set forth on the reverse hereof. IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed, manually or by facsimile, under its corporate seal. Dated: TCI COMMUNICATIONS, INC. By: -------------------------------------- President Attest: ---------------------------------- Secretary [TCI Communications, Inc. Corporate Seal] CERTIFICATE OF AUTHENTICATION: The undersigned certifies that this is one of the Securities of the series designated herein referred to in the within-mentioned Indenture. The Bank of New York, as Trustee By: ------------------------------------------ Authorized Signatory [REVERSE SIDE OF NOTE] 1. Indenture. This Note is one of a duly authorized issue of senior debt securities of the Company (the "Notes"), issued and to be issued in one or more series under an Indenture, dated as of February 19, 1998 (the "Indenture"), between the Company and the Trustee. The terms of the Notes include those stated in the Indenture and those made part of the Indenture by the United States Trust Indenture Act of 1939, as amended (15 U.S. Code (S)(S)77aaa-77bbbb) (the "Act"). The Notes are subject to all such terms, and the holders of Notes are referred to the Indenture and the Act for a statement of them. All terms used in this Note which are defined in the Indenture shall have the meanings assigned to them in the Indenture. This Note is one of the series designated on the face hereof. The Notes of this series are general unsecured obligations of the Company limited to U.S.$750,000,000 in aggregate principal amount. 2. Additional Issues. The Company may from time to time, without notice to or the consent of the registered holders of the Notes, create and issue additional notes ranking pari passu with the Notes in all respects (or in all respects except for the payment of interest accruing prior to the issue date of such additional notes or except for the first payment of interest following the issue date of such additional notes) and such additional notes may be consolidated and form a single series with the Notes and have the same terms as to status, redemption or otherwise as the Notes. 3. Payment of Additional Amounts. The Company shall, subject to the exceptions and limitation set forth below, pay as additional interest on the Notes, such additional amounts as are necessary in order that the net payment by the Company or a Paying Agent of the principal of and interest on the Notes to a holder that is not a United States person (as defined below), after deduction for any present or future tax, assessment or other governmental charge of the United States, or a political subdivision or taxing authority thereof or therein, imposed by withholding with respect to the payment, will not be less than the amount provided in the Notes to be then due and payable; provided, however, that the foregoing obligation to pay additional amounts shall not apply: (1) to any such tax, assessment or other governmental charge that is imposed or withheld solely by reason of the holder, or a fiduciary, settlor, beneficiary, owner, member or shareholder of the holder, or a person holding a power over an estate or trust administered by a fiduciary holder, being considered as: (a) having a current or former relationship or connection with the United States, or a political subdivision thereof or therein, including, without limitation, being or having been a citizen or resident of, or treated as a resident of, the United States, being or having been present or engaged in a trade or business in the United States or having or having had a permanent establishment in the United States; (b) being or having been a foreign personal holding company, a personal holding company, a passive foreign investment company or a controlled foreign corporation for United States tax purposes, a corporation that has accumulated earnings to avoid United States federal income tax or a private foundation or other tax exempt organization; (c) being or having been a "10-percent shareholder" of the Company as defined in section 871(h)(3) of the United States Internal Revenue Code of 1986, as amended (the "Code"), or any successor provision; or (d) being or having been a bank receiving payments on an extension of credit made pursuant to a loan agreement entered into in the ordinary course of its trade or business; (2) to any holder that is not the sole beneficial owner of this Note, or a portion thereof, or that is a fiduciary or partnership, but only to the extent that a beneficial owner, a beneficiary or settlor with respect to the fiduciary or a member of the partnership would not have been entitled to the payment of an additional amount had the beneficial owner, beneficiary, settlor or member received directly its beneficial or distributive share of the payment; (3) to any such tax, assessment or other governmental charge that is imposed or withheld solely by reason of the failure of the holder or any other person to comply with any certification, identification, information, documentation or other reporting requirements concerning the nationality, residence, identity, form of organization, status as a bank or other financial institution or relationship or connection with the United States, or any political subdivision thereof or therein, of the holder or beneficial owner of this Note, or concerning such holder's or beneficial owner's not being subject to United States withholding or backup withholding, if compliance is required by statue, by regulation, by an applicable tax treaty to which the United States is a party, or by an administrative or judicial interpretation thereof, as a condition to relief or exemption from such tax, assessment or other governmental charge; (4) to any such tax, assessment or other governmental charge that is imposed or payable otherwise than by deduction withholding by the Company or a paying agent from the payment; (5) to any such tax, assessment or other governmental charge that is imposed or withheld solely by reason of a newly issued or change in law, regulation or treaty, or administrative or judicial interpretation thereof, that becomes effective, or the presentation of this Note for payment, more than 10 days after the payment becomes due or is duly provided for, whichever occurs later; (6) to any estate, inheritance, gift, sales, excise, transfer, wealth, franchise, personal property or similar such tax, assessment or other governmental charge; (7) to any such tax, assessment or other governmental charge required to be withheld by any Paying Agent from any payment of principal of or interest on this Note, if such payment can be made without such withholding by any other Paying Agent; or (8) in the case of any combination of items (1), (2), (3), (4), (5), (6) and (7). As used herein, (i) the term "United States" means the United States of America (including the States and the District of Columbia) and its territories, its possessions and other areas subject to its jurisdiction, and (ii) the term "United States person" means any individual who is a citizen or resident, or treated as a resident, of the United States, a corporation, partnership or other entity created or organized in or under the laws of the United States or of any political subdivision thereof (other than a partnership that is not treated as a United States person under any applicable United States Treasury regulations), a partnership not created or organized in or under the laws of the United States or of any political subdivision thereof if all of the members of such partnership are United States persons, any estate the income of which is subject to United States federal income taxation regardless of its source, or any trust if a court within the United States is able to exercise primary supervision over the administration of the trust and one or more United States persons have the authority to control all substantial decisions of the trust. Notwithstanding the preceding sentence, to the extent provided in the United States Treasury regulations, certain trusts in existence on August 20, 1996, and treated as United States persons prior to such date that elect to continue to be treated as United States persons will also be a United States person. 4. Redemption for Tax Reasons. If the Company determines that it has or will become, or receives a written opinion of independent counsel selected by the Company to the effect that there is a substantial possibility that it has or will become obligated to pay additional amounts as described in the preceding paragraph, then the Company may, at its option, redeem, as a whole, but not in part, the Notes on not less than 30 nor more than 60 days' prior notice, at a redemption price equal to 100% of the principal amount together with interest accrued but unpaid thereon to the date fixed for redemption. Except as described in the foregoing sentence, this Note may not be redeemed by the Company prior to maturity. The Notes are not entitled to the benefits of a sinking fund. 5. Denominations, Transfer, Exchange. The Notes are in registered form without coupons in denominations of U.S.$1,000 and integral multiples of U.S.$1,000. A holder may transfer or exchange the Notes only in accordance with the Indenture. The Registrar may require a holder, among other things, to furnish appropriate endorsements and transfer documents and to pay any taxes and fees required by law or permitted by the Indenture. 6. Persons Deemed Owners. The registered holder of a Note may be treated as the owner of it for all purposes. 7. Unclaimed Money. If money for the payment of principal or interest (including any additional amounts) remains unclaimed for two years, the Trustee or Paying Agent will pay the money back to the Company at its request. After that, holders entitled to the money must look to the Company for payment thereof unless otherwise provided by law. 8. Amendment, Supplement, Waiver. Subject to certain exceptions, the Indenture or the Securities of any series may be amended or supplemented, and any past default or compliance with any provision may be waived insofar as the Securities of any series are concerned, with the consent of the holders of a majority in principal amount of the outstanding Securities of such series. Without the consent of any Securityholder, the Company and the Trustee may amend or supplement the Indenture or the Securities of any series to cure any ambiguity, defect, or inconsistency or to provide for uncertificated Securities in addition to certificated Securities or to make certain other specified changes or any change that does not materially adversely affect the rights of any Securityholder. 9. Successor Corporation. When a successor corporation assumes all the obligations of its predecessor under the Notes and the Indenture, the predecessor corporation will be released from those obligations. 10. Defaults and Remedies. An Event of Default is: default for 30 days in payment of any interest (including any additional amounts) on any Note; default in payment of principal on any Note; failure by the Company, for 30 days after receipt of notice from the Trustee or the holders of at least 25% in principal amount of the outstanding Notes, to comply with any of its other agreements in the Indenture (other than an agreement which has expressly been included in the Indenture solely for the benefit of Securities of any series other than the Notes) or the Notes; acceleration of Debt of the Company (including Securities of any other series) representing in excess of five percent (5%) of the aggregate principal amount of the Company's Funded Debt then outstanding unless, within 30 days after receipt of notice by the Company from the Trustee or the holders of at least 25% in principal amount of the outstanding Notes, such acceleration has been rescinded or annulled, such Debt has been paid or the Company shall have contested such acceleration in good faith and by appropriate proceedings and have obtained and thereafter maintained a stay of all consequences thereof that would have a material adverse effect on the Company; and certain events of bankruptcy or insolvency. If an Event of Default with respect to the Notes shall occur and be continuing, the principal of and accrued interest (including any additional amounts) on the Notes may be declared or may become due and payable in the manner and with the effect provided in the Indenture. In the event of a declaration of acceleration under the Indenture with respect to the Notes because an Event of Default has occurred due to the acceleration of Debt of the Company representing in excess of five percent (5%) of the aggregate principal amount of the Company's Funded Debt, such declaration of acceleration under the Indenture shall be automatically annulled if (a) as a result of the contest by the Company in appropriate proceedings of the acceleration of such Debt such acceleration is declared void ab initio, or (b) within 90 days of the declaration of acceleration under the Indenture the declaration of acceleration of such Debt has been rescinded or annulled in any manner authorized by the mortgage, indenture or instrument evidencing or creating such Debt and, in the case of this clause (b), the annulment of the declaration of acceleration under the Indenture would not conflict with any judgment or decree, and, in either case, all other existing Events of Default (other than the non-payment of the principal of and accrued interest, if any, on Securities of any series that have become due solely by such acceleration) with respect to the Notes have been cured or waived. Noteholders may not enforce the Indenture or the Notes except as provided in the Indenture. The Trustee may require indemnity satisfactory to it before it enforces the Indenture or the Notes. Subject to certain limitations, holders of a majority in aggregate principal amount of the outstanding Notes may direct the Trustee in its exercise of any trust or power. The Trustee may withhold from Noteholders notice of any continuing default (except a default in payment of principal, premium, if any, or interest (including any additional amounts) or other amounts due) if it determines that withholding notice is in their interests. The Company is required to file periodic reports with the Trustee as to the absence of default. 11. Trustee Dealings with Company. The Trustee in its individual or any other capacity may make loans to, accept deposits from, and perform services for the Company or its Affiliates, and may otherwise deal with the Company or its Affiliates, as if it were not Trustee. 12. No Recourse Against Others. A director, officer, employee, or stockholder, as such, of the Company or the Trustee shall not have any liability for any obligations of the Company or the Trustee under the Notes or the Indenture or for any claim based on, in respect of, or by reason of such obligations or their creation. Each Noteholder by accepting a Note waives and releases all such liability. The waiver and release are part of the consideration for the issue of the Note. 13. Authentication. This Note shall not be valid until the Trustee signs the certificate of authentication on the other side of this Note. 14. Governing Law. The Notes and the Indenture are governed by, and are to be construed in accordance with, the laws of the State of New York, United States of America, applicable to agreements made and to be performed wholly within such jurisdiction. 15. Abbreviations. Customary abbreviations may be used in the name of a holder of a Note or an assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the entireties), JT TEN (= joint tenants with rights of survivorship and not as tenants in common), CUST (= custodian) and U/G/M/A (= Uniform Gifts to Minors Act). Additional abbreviations may be used though not in the above list. The Company will furnish to any holder of a Note upon written request and without charge a copy of the Indenture. Requests may be made to: Bernard W. Schotters, Executive Vice President and Treasurer, TCI Communications, Inc., 5619 DTC Parkway, Englewood, Colorado 80111-3000. ASSIGNMENT FORM If you the holder want to assign this Note, fill in the form below and have your signature guaranteed: For value received, I or we assign and transfer this Note to - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- (Insert assignee's social security or tax ID number) - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- - ------------------------------------------------------------------------------- (Print or type assignee's name, address, and zip code) and irrevocably appoint - ------------------------------------------------------------------------------- agent to transfer this Note on the books of the Company. The agent may substitute another to act for him. - ------------------------------------------------------------------------------- Dated: Your signature: --------------------------- --------------------------- (Sign exactly as your name appears on the other side of this Note) Signature Guarantee: --------------------- EX-5.1 4 OPINION, DATED MAY 6, 1998, OF BAKER & BOTTS, L.L.P. EXHIBIT 5.1 ----------- May 6, 1998 TCI Communications, Inc. Terrace Tower II 5619 DTC Parkway Englewood, Colorado 80111 Gentlemen: Reference is made to the Registration Statement on Form S-3, Commission File No. 333-44745 (as amended, the "Registration Statement") filed by TCI Communications, Inc., a Delaware corporation (the "Company"), and Tele- Communications, Inc., a Delaware corporation (the "Parent"), in connection with the offering from time to time of (i) senior, senior subordinated or subordinated debt securities of the Company (the "Debt Securities"), (ii) shares of Series Preferred Stock of the Parent, which may be issued in the form of depositary shares evidenced by depositary receipts if the Parent elects to issue fractional interests in shares of a series of Series Preferred Stock, (iii) shares of Tele-Communications, Inc. Series A TCI Group Common Stock, par value $1.00 per share, of the Parent ("Series A TCI Group Common Stock"), (iv) shares of Series A TCI Group Common Stock issuable upon conversion of Debt Securities of the Company or upon conversion of Series Preferred Stock of the Parent, and (v) any guarantees of the Parent with respect to Debt Securities of the Company, for an aggregate initial offering price of up to $3 billion (or the equivalent thereof denominated in one or more foreign currencies or currency units). On April 30, 1998, the Company entered into an underwriting agreement (the "Underwriting Agreement") with Credit Suisse First Boston Corporation and Lehman Brothers Inc., as representatives of the several underwriters named in the Underwriting Agreement (collectively, the "Underwriters"), pursuant to which the Company agreed to sell to the Underwriters, subject to the conditions stated in the Underwriting Agreement, $750,000,000 aggregate principal amount of a series of the Company's senior Debt Securities designated as its "6.375% Senior Notes due May 1, 2003" (the "Notes"). In connection herewith, we have examined, among other things, copies of the Restated Certificate of Incorporation and By-laws of the Company, each as amended, certified to our satisfaction; the Underwriting Agreement; the Indenture, dated as of February 19, 1998 (the "Indenture"), between the Company and The Bank of New York, as Trustee (the "Trustee"); the form of the Notes; copies of records of proceedings of the Company's Board of Directors, including TCI Communications, Inc. May 6, 1998 Page 2 committees thereof, certified to our satisfaction; the Company Order, dated May 6, 1998, addressed to the Trustee (the "Company Order"); and such other documents, records, certificates and questions of law as we deemed necessary or appropriate for the purpose of this opinion. In rendering the opinions expressed herein, we have assumed: (i) the authenticity of all documents submitted to us as original documents and the conformity to authentic original documents of all documents submitted to us as certified, conformed or reproduction copies; (ii) that the signatures on all documents examined by us are genuine; and (iii) that the Indenture and the Underwriting Agreement have been duly and validly authorized, executed and delivered by, and constitute the valid and binding obligations of, the parties thereto other than the Company. In addition, we have relied upon the truth and correctness of certificates of public officials and statements and certificates of officers and representatives of the Company. Based upon the foregoing, we are of the opinion that the Notes have been duly authorized and, when duly executed by the proper officers of the Company, completed, authenticated and delivered by the Trustee in accordance with the Indenture and issued and sold to the Underwriters pursuant to the terms of the Underwriting Agreement, the Notes will be legal, valid and binding obligations of the Company entitled to the benefits of the Indenture and enforceable in accordance with their terms, except (A) as such enforceability may be limited by bankruptcy, insolvency, reorganization, fraudulent conveyance, moratorium and other laws affecting creditors' rights generally, and (B) that the remedy of specific performance and injunctive and other forms of equitable relief are subject to certain equitable defenses and to the discretion of the court before which any proceeding therefor may be brought. Except as stated above, we express no opinion with respect to any other matter. We hereby consent to the filing of this opinion as Exhibit 5.1 to the Company's Current Report on Form 8-K, dated May 6, 1998, and to the reference to us under the heading "Validity of the Notes" in the Prospectus Supplement, dated April 30, 1998, to the Prospectus, dated April 22, 1998, forming a part of the Registration Statement and to the incorporation of this opinion by reference into the Registration Statement. In giving the foregoing consent, we do not admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act of 1933, as amended, or the rules and regulations of the Securities and Exchange Commission promulgated thereunder. TCI Communications, Inc. May 6, 1998 Page 3 Jerome H. Kern, a special counsel to Baker & Botts, L.L.P., is a director of the Parent. Certain partners of Baker & Botts, L.L.P. and Mr. Kern hold shares, restricted shares and/or options to purchase shares of the common stock of the Parent. Very truly yours, /s/ Baker & Botts, L.L.P. BAKER & BOTTS, L.L.P. -----END PRIVACY-ENHANCED MESSAGE-----