EXHIBIT 99.9
[Exhibit 1.1(b)]
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
TIME WARNER CABLE INC.
TIME WARNER CABLE INC., a corporation organized and existing under
the laws of the State of Delaware (the "Corporation"), hereby certifies pursuant
to Sections 242 and 245 of the General Corporation Law of the State of Delaware
(the "DGCL" ), as follows:
A. The Corporation's Certificate of Incorporation was originally
filed with the Secretary of State of the State of Delaware on March 21, 2003
under the name New MOTH Holdings, Inc., and a Restated Certificate of
Incorporation was filed with the Secretary of State of the State of Delaware on
March 31, 2003 under the name MOTH Holdings, Inc. (collectively, the "Original
Certificate of Incorporation").
B. The amendments to the Original Certificate of Incorporation
herein certified have been duly adopted in accordance with Sections 242 and 245
of the DGCL and by the written consent of stockholders in accordance with
Section 228 of the DGCL.
C. This Amended and Restated Certificate of Incorporation (the
"Amended and Restated Certificate of Incorporation") amends and restates the
Original Certificate of Incorporation as authorized by the Corporation's Board
of Directors (the "Board of Directors") in accordance with the requirements of
the DGCL.
D. The text of the Original Certificate of Incorporation is hereby
amended and restated to read as herein set forth in full:
ARTICLE I
The name of the corporation (hereinafter called the "Corporation")
is TIME WARNER CABLE INC.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, City of Wilmington, County of New Castle,
Delaware 19801. The name of the Corporation's registered agent at such address
is The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the DGCL.
ARTICLE IV
Section 1. Authorized Capital. The total number of shares of all
classes of stock which the Corporation shall have authority to issue is
26,000,000,000 shares, consisting of (1) 1,000,000,000 shares of Preferred
Stock, par value $0.01 per share (the "Preferred Stock"), (2) 20,000,000,000
shares of Class A Common Stock, par value $0.01 per share (the "Class A Common
Stock"), and (3) 5,000,000,000 shares of Class B Common Stock, par value $0.01
per share (the "Class B Common Stock" and, together with the Class A Common
Stock, the "Common Stock").
Section 2. Certain Defined Terms. For purposes of this Amended and
Restated Certificate of Incorporation:
"Adelphia Agreement" shall mean the Asset Purchase Agreement, dated
as of April 20, 2005, between Adelphia Communications Corporation, a Delaware
corporation, and Time Warner NY Cable LLC, a Delaware limited liability company
and a Subsidiary of the Corporation, as the same may be amended, restated,
supplemented or otherwise modified from time to time.
"Affiliate" shall mean, with respect to any specified Person, any
other Person who or which, directly or indirectly controls, is controlled by or
is under common control with such specified Person.
"Initial Offering Date" shall mean the earlier of (i) the date upon
which shares of the Common Stock shall have been sold in an initial public
offering (whether a primary or secondary offering) of the Corporation pursuant
to an effective registration statement filed by the Corporation and (ii) the
date upon which shares of the Common Stock shall have been issued pursuant to
the Adelphia Agreement.
"Person" shall mean any individual, corporation, limited liability
company, partnership, firm, group (as such term is used under Section 13(d)(3)
of the Securities Exchange Act of 1934, as amended), joint venture, association,
trust, unincorporated organization, estate, trust or other entity.
"Subsidiary" means, with respect to any Person, any entity, whether
incorporated or unincorporated, of which securities or other ownership interests
having ordinary voting power to elect a majority of the board of directors or
other body performing similar functions are at any time directly or indirectly
owned or controlled by such Person or by one or more of its respective
Subsidiaries.
"TWX" shall mean Time Warner Inc. and all Affiliates thereof (other
than the Corporation and its Subsidiaries).
"Voting Stock" shall mean, for all purposes under this Amended and
Restated Certificate of Incorporation, the Class A Common Stock and the Class B
Common Stock and any other securities of the Corporation entitled to vote on all
matters
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on which both the Class A Common Stock and the Class B Common Stock are
generally entitled to vote.
"Whole Board" shall mean the total number of authorized directors,
including any vacancies or unfilled newly-created directorships, excluding any
Preferred Stock Directors (as hereinafter defined).
Section 3. Preferred Stock. The Board of Directors is hereby
expressly authorized to provide, out of the unissued shares of Preferred Stock,
for one or more series of Preferred Stock and, with respect to each such series,
to fix the number of shares constituting such series and the designation of such
series, the voting powers (if any) of the shares of such series, and the
preferences and relative, participating, optional or other special rights, if
any, and any qualifications, limitations or restrictions thereof, of the shares
of such series. The powers, preferences and relative, participating, optional
and other special rights of each series of Preferred Stock, and the
qualifications, limitations or restrictions thereof, if any, may differ from
those of any and all other series at any time outstanding.
Section 4. Priority of Preferred Stock. Each of the Class A Common
Stock and Class B Common Stock is subject to all the powers, rights, privileges,
preferences and priorities of any series of Preferred Stock as shall be stated
and expressed herein or as shall be stated and expressed in any Certificates of
Designations filed with respect to any series of Preferred Stock pursuant to the
authority expressly granted to and vested in the Board of Directors by the
provisions of Section 3 of this Article IV.
Section 5. Class A Common Stock and Class B Common Stock.
(a) Voting Rights.
(i) Except as otherwise required by the DGCL or as
provided by or pursuant to the provisions of this Amended and Restated
Certificate of Incorporation (including, without limitation, any certificate
filed with the Secretary of State of the State of Delaware establishing the
terms of a series of Preferred Stock in accordance with Section 3 of this
Article IV):
(1) each holder of Class A Common Stock, as such,
shall be entitled to one (1) vote for each share of Class A Common Stock
held of record by such holder with respect to the election of Class A
Directors (as hereinafter defined) as provided in Article V of this
Amended and Restated Certificate of Incorporation and on all other matters
on which holders of Class A Common Stock are entitled to vote; and
(2) each holder of Class B Common Stock, as such,
shall be entitled to ten (10) votes for each share of Class B Common Stock
held of record by such holder with respect to the election of Class B
Directors (as hereinafter defined) as provided in Article V of this
Amended and Restated
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Certificate of Incorporation and on all other matters on which holders of
Class B Common Stock are entitled to vote.
(ii) The holders of Class A Common Stock and Class B
Common Stock shall vote together as a single class on all matters on which
stockholders are generally entitled to vote, except as otherwise required by the
DGCL or as provided by or pursuant to this Amended and Restated Certificate of
Incorporation (including, without limitation, as provided in Article V of this
Amended and Restated Certificate of Incorporation).
(b) Dividends. Subject to the DGCL and the rights, if any, of
the holders of any outstanding series of Preferred Stock or any class or series
of stock having a preference over or the right to participate with the Common
Stock with respect to the payment of dividends, dividends may be declared and
paid on the Class A Common Stock and the Class B Common Stock at such times and
in such amounts as the Board of Directors in its discretion shall determine;
provided that the Board of Directors shall declare no dividend, and no dividend
shall be paid, with respect to any outstanding share of Class A Common Stock or
Class B Common Stock, whether paid in cash or property (including, without
limitation, shares of Class A Common Stock paid on or with respect to shares of
Class A Common Stock or shares of Class B Common Stock paid on or with respect
to shares of Class B Common Stock (collectively, "Stock Dividends")), unless,
simultaneously, the same dividend (which, in the case of Stock Dividends, shall
be stock of the class on or with respect to which the dividend is paid) is paid
with respect to each share of Class A Common Stock and Class B Common Stock.
Stock Dividends with respect to Class A Common Stock may only be paid with
shares of Class A Common Stock. Stock Dividends with respect to Class B Common
Stock may only be paid with shares of Class B Common Stock.
(c) Liquidation Rights. Upon the dissolution, liquidation or
winding up of the Corporation, subject to the rights, if any, of the holders of
any outstanding series of Preferred Stock or any class or series of stock having
a preference over or the right to participate with the Common Stock with respect
to the distribution of assets of the Corporation upon such dissolution,
liquidation or winding up of the Corporation, the holders of the Class A Common
Stock and Class B Common Stock, as such, shall be entitled to receive the assets
of the Corporation available for distribution to its stockholders ratably in
proportion to the number of shares held by them, as a single class.
Section 6. Reclassifications. Neither the Class A Common Stock nor
the Class B Common Stock may be subdivided, consolidated, reclassified or
otherwise changed unless contemporaneously therewith the other class of Common
Stock is subdivided, consolidated, reclassified or otherwise changed in the same
proportion and in the same manner.
Section 7. Mergers, Consolidations, etc. In addition to any other
vote required by law, the affirmative vote of the holders of a majority of the
combined voting power of the then outstanding shares of Class A Common Stock and
Class B Common
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Stock, voting together as a single class, shall be required to approve (i) any
merger, consolidation or business combination of the Corporation with or into
another corporation, whether or not the Corporation is the surviving
corporation; provided that any such transaction in which the holders of shares
of Class A Common Stock do not receive per share consideration identical (other
than with respect to voting rights) to that received by the holders of Class B
Common Stock or that would otherwise adversely affect the specific rights and
privileges of holders of the Class A Common Stock relative to the effect on the
specific rights and privileges of the holders of Class B Common Stock shall also
require the approval of the holders of a majority of the voting power of the
then outstanding shares of Class A Common Stock held by persons other than TWX
or (ii) any sale of all or substantially all of the assets of the Corporation,
in each case only if such action is otherwise required to be approved by the
stockholders of the Corporation under the DGCL or any other applicable law or
stock exchange rule or regulation.
Section 8. Other. Except as otherwise set forth in this Amended and
Restated Certificate of Incorporation, the Class A Common Stock and the Class B
Common Stock shall be identical in all respects.
ARTICLE V
Section 1. Certain Defined Terms.
(a) For purposes of this Article V:
"By-laws" shall mean the by-laws of the Corporation, as amended from
time to time.
"Class A Directors" shall mean those persons elected as Class A
Directors to the Board of Directors pursuant to this Article V. The number of
authorized Class A Directors shall at no time constitute (i) less than one-sixth
(1/6) of the Whole Board or one (1), whichever is greater, or (ii) greater than
one-fifth (1/5) of the Whole Board.
"Class B Directors" shall mean those persons elected as Class B
Directors pursuant to this Article V. The number of authorized Class B Directors
shall at no time constitute less than four-fifths (4/5) of the Whole Board.
"Independent Director" means a director who is "Independent," as
that term is defined in Section 303.01 or successor provision of the Listed
Company Manual of the New York Stock Exchange, as such rules may be amended from
time to time.
"Preferred Stock Directors" shall mean directors elected by the
holders of any series of Preferred Stock provided for or fixed pursuant to the
provisions of Article IV hereof.
Section 2. General Powers of Directors. Except as otherwise
expressly provided in this Amended and Restated Certificate of Incorporation,
the property, affairs and business of the Corporation shall be managed under the
direction of the Board of Directors and, except as otherwise expressly provided
by the DGCL or this
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Amended and Restated Certificate of Incorporation, all of the powers of the
Corporation shall be vested in such Board of Directors.
Section 3. Number of Directors. Except as otherwise fixed by or
pursuant to the provisions of Article IV of this Amended and Restated
Certificate of Incorporation relating to the rights of the holders of any series
of Preferred Stock or any class or series of stock having a preference over the
Common Stock as to dividends or upon dissolution, liquidation or winding up, the
number of the directors of the Corporation shall be as fixed from time to time
pursuant to the By-laws.
Section 4. Election of Directors.
(a) Class A Directors. The Class A Directors shall be elected
by a plurality of the votes of the shares of Class A Common Stock present in
person or represented by proxy at each annual meeting of stockholders and
entitled to vote on the election of Class A Directors. Each Class A Director so
elected shall hold office for a term expiring at the next annual meeting of
stockholders of the Corporation and until such director's successor shall have
been duly elected and qualified or until such director's earlier death,
resignation, disqualification or removal.
(b) Class B Directors. The Class B Directors shall be elected
by a plurality of the votes of the shares of Class B Common Stock, present in
person or represented by proxy at each annual meeting of stockholders and
entitled to vote on the election of Class B Directors. Each Class B Director so
elected shall hold office for a term expiring at the next annual meeting of
stockholders of the Corporation and until such director's successor shall have
been duly elected and qualified or until such director's earlier death,
resignation, disqualification or removal.
(c) Removal of Directors; Qualification. Any Class A Director
or Class B Director may be removed from office without cause by the affirmative
vote of the holders of at least a majority of the votes represented by the
shares then outstanding and entitled to vote in the election of such Class A
Directors or Class B Directors, as the case may be. In addition, any Class A
Director or Class B Director may be removed for cause as provided in the DGCL.
(d) Vacancies. Any and all vacancies and newly created
directorships in respect of Class A Directors, however occurring, including,
without limitation, by reason of an increase in the size of the Board of
Directors, or the death, resignation, disqualification or removal of a director,
shall be filled by a majority of Class A Directors then serving on the Board of
Directors or, if no Class A Director is then serving on the Board of Directors,
by a majority of all directors then serving on the Board of Directors. Any and
all vacancies and newly created directorships in respect of Class B Directors,
however occurring, including, without limitation, by reason of an increase in
the size of the Board of Directors, or the death, resignation, disqualification
or removal of a director, shall be filled by a majority of Class B Directors
then serving on the Board of Directors or, if no Class B Director is then
serving on the Board of Directors, by a majority of all directors then serving
on the Board of Directors. Any
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director elected in accordance with this Section 4(d) of this Article V shall
hold office until the next annual meeting of stockholders and until such
director's successor shall have been duly elected and qualified or until such
director's earlier death, resignation, disqualification or removal. In the event
of a vacancy in the Board of Directors, the remaining directors, except as
otherwise provided by law, may exercise the powers of the full Board of
Directors until such vacancy is filled.
Section 5. Notice. Advance notice of nominations for the election of
directors shall be given in the manner and to the extent provided in the
By-laws.
Section 6. Independence of Board of Directors. Prior to the Initial
Offering Date, there shall at all times be at least two Independent Directors on
the Board of Directors. Following the Initial Offering Date, the requirements of
the New York Stock Exchange governing board composition will be met; provided
that, in any event, at least 50% of the Board of Directors of the Corporation
will consist of Independent Directors for at least three years following the
Initial Offering Date.
ARTICLE VI
Subject to the proviso to the second sentence of this Article VI, in
furtherance and not in limitation of the powers conferred upon it by law, the
Board of Directors is expressly authorized to adopt, repeal, alter or amend the
By-laws of the Corporation. In addition to any requirements of law and any other
provision of this Amended and Restated Certificate of Incorporation or any
resolution or resolutions of the Board of Directors duly adopted pursuant to
Article IV of this Amended and Restated Certificate of Incorporation with
respect to any Preferred Stock (and notwithstanding the fact that a lesser
percentage may be specified by law, this Amended and Restated Certificate of
Incorporation or any such resolution or resolutions), the affirmative vote of
the holders of a majority of the combined voting power of the then outstanding
shares of the Voting Stock, voting together as a single class, shall be required
for stockholders to adopt, amend, alter or repeal any provision of the By-laws
of the Corporation; provided that, in addition to any vote required under this
Amended and Restated Certificate of Incorporation, Article VI of the By-laws
(Transactions With Affiliates) may not be repealed, altered or amended, and no
provision of the Amended and Restated Certificate of Incorporation or the
By-laws inconsistent therewith may be adopted, except (A) through and until the
fifth anniversary of the Initial Offering Date, by the stockholders of the
Corporation (as provided above) and the affirmative vote of the holders of a
majority of the voting power of the then outstanding shares of Class A Common
Stock held by persons other than TWX and (B) after the fifth anniversary of the
Initial Offering Date, by (i) the Board of Directors (as provided above) and the
approval of a majority of the total number of the Independent Directors then
serving on the Board of Directors or (ii) the stockholders of the Corporation
(as provided above) and the affirmative vote of the holders of a majority of the
voting power of the then outstanding shares of Class A Common Stock held by
persons other than TWX.
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ARTICLE VII
The Corporation hereby expressly states that it shall not be bound
or governed by, or otherwise subject to, Section 203 of the DGCL.
ARTICLE VIII
Section 1. Defined Terms. For purposes of this Article VIII:
"Corporate Opportunity" shall mean an investment or business
opportunity or prospective economic advantage in which the Corporation could,
but for the provisions of this Article VIII, have an interest or expectancy.
Section 2. Competing Activities. Except as otherwise expressly
provided in an agreement between or among the Corporation and any stockholder or
stockholders or in a general policy of the Corporation applicable to the
employees of the Corporation, (i) the stockholders of the Corporation
(including, without limitation, TWX and its officers, employees, directors,
agents, stockholders, members, partners and Affiliates) may engage or invest in,
independently or with others, any business activity of any type or description,
including, without limitation, those that might be the same as or similar to the
Corporation's business; (ii) neither the Corporation nor any other stockholder
of the Corporation shall have any right in or to such business activities or
ventures or to receive or share in any income or proceeds derived therefrom; and
(iii) the Corporation shall have no interest or expectancy, and hereby
specifically renounces any interest or expectancy, in any such business
activities or ventures.
Section 3. Corporate Opportunities.
(a) If TWX (or any of its officers, employees, directors,
agents, stockholders, members or partners) acquires knowledge of a potential
transaction or matter which may be a Corporate Opportunity or otherwise is then
exploiting any Corporate Opportunity, subject to Section 3(b) below, the
Corporation shall have no interest in such Corporate Opportunity and no
expectancy that such Corporate Opportunity be offered to the Corporation, any
such interest or expectancy being hereby renounced, so that, as a result of such
renunciation, and for the avoidance of doubt, such Person (i) shall have no duty
to communicate or present such Corporate Opportunity to the Corporation, (ii)
shall have the right to hold any such Corporate Opportunity for its (and/or its
officers', directors', agents', stockholders', members' or partners') own
account or to recommend, sell, assign or transfer such Corporate Opportunity to
Persons other than the Corporation, and (iii) shall not breach any fiduciary
duty to the Corporation, in such Person's capacity as a stockholder of the
Corporation, by reason of the fact that such Person pursues or acquires such
Corporate Opportunity for itself, directs, sells, assigns or transfers such
Corporate Opportunity to another Person, or does not communicate information
regarding such Corporate Opportunity to the Corporation.
(b) Notwithstanding the provisions of Section 3(a) of this
Article VIII, the Corporation does not renounce any interest or expectancy it
may have in
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any Corporate Opportunity that is offered to any Person who is an officer or
employee of the Corporation, even if such Person is a stockholder of TWX, if
such opportunity is expressly offered to such person in his or her capacity as
an officer or employee of the Corporation.
(c) For purposes of this Article VIII only, (i) a director of
the Corporation who is Chairman of the Board of Directors of the Corporation or
of a committee thereof shall not be deemed to be an officer of the Corporation
by reason of holding such position (without regard to whether such position is
deemed to be the position of an officer of the corporation under the By-laws of
the Corporation), unless such person is a full-time employee of the Corporation;
and (ii) the term "Corporation" shall mean the Corporation and all corporations,
partnerships, joint ventures, associations and other entities in which the
Corporation beneficially owns (directly or indirectly) 50% or more of the
outstanding voting stock, voting power, partnership interests or similar voting
interests.
Section 4. Notice to Holders. Any person purchasing or otherwise
acquiring any interest in shares of the capital stock of the Corporation shall
be deemed to have notice of and to have consented to the provisions of this
Amended and Restated Certificate of Incorporation, including, without
limitation, this Article VIII.
ARTICLE IX
In addition to any requirements of law and any other provisions of
this Amended and Restated Certificate of Incorporation or any resolution or
resolutions of the Board of Directors adopted pursuant to Article IV of this
Amended and Restated Certificate of Incorporation with respect to any Preferred
Stock (and notwithstanding the fact that a lesser percentage may be specified by
law, this Amended and Restated Certificate of Incorporation or any such
resolution or resolutions), both the approval of the Board of Directors and the
affirmative vote of the holders of a majority of the combined voting power of
the then outstanding shares of Voting Stock, voting together as a single class,
shall be required to amend, alter or repeal, or adopt any provision inconsistent
with, this Amended and Restated Certificate of Incorporation; provided that, in
addition to any vote required by law or under this Amended and Restated
Certificate of Incorporation, both the affirmative vote of a majority of the
voting power of the then outstanding shares of Class A Common Stock held by
persons other than TWX and the approval of a majority of the total number of
Independent Directors then serving on the Board of Directors shall be required
to amend, alter or repeal, or adopt any provision inconsistent with, (a) this
Amended and Restated Certificate of Incorporation, if such action would have a
material adverse effect on the rights of the holders of the Class A Common Stock
in a manner different from the effect on the rights of the holders of the Class
B Common Stock or (b) Section 7 of Article IV (Mergers, Consolidations etc.),
Section 6 of Article V (Independence of Board of Directors), Article VI or this
Article IX, in each case, of this Amended and Restated Certificate of
Incorporation. Subject to the foregoing provisions of this Article IX, the
Corporation reserves the right to amend, alter or repeal any provision contained
in this Amended and Restated Certificate of
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Incorporation, in the manner now or hereafter prescribed by statute, and all
rights conferred upon stockholders herein are subject to this reservation.
ARTICLE X
To the fullest extent that the DGCL as it exists or as it may
hereafter be amended permits the limitation or elimination of the liability of
directors, no director of the Corporation shall be liable to the Corporation or
its stockholders for monetary damages for breach of fiduciary duty as a
director. No amendment to or repeal of this Article X shall apply to or have any
effect on the liability or alleged liability of any director of the Corporation
for or with respect to any acts or omissions of such director occurring prior to
such amendment or repeal.
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IN WITNESS WHEREOF, the undersigned has caused this Amended and
Restated Certificate of Incorporation to be duly executed in its corporate name
by its duly authorized officer.
Dated: [_________]
TIME WARNER CABLE INC.
By: ______________________
Name:
Title:
Amended and Restated Certificate of Incorporation of Time Warner Cable Inc.