EXHIBIT I TO
SECOND AMENDED AND RESTATED
LMC AGREEMENT
CONTRIBUTION AND EXCHANGE
AGREEMENT dated as of September 22,
1995, among TIME WARNER INC., a
Delaware corporation ("TW Parent"),
TW INC., a Delaware corporation and
direct wholly-owned subsidiary of TW
Parent ("Holdco"), LIBERTY MEDIA
CORPORATION, a Delaware corporation
("LMC Parent"), TCI TURNER PREFERRED,
INC., a Colorado corporation
("TCITP"), and LIBERTY BROADCASTING,
INC., an Oregon corporation and
direct wholly-owned subsidiary of
TCITP ("LBI").
Recitals
A. Reference is made to that certain Amended and
Restated Agreement and Plan of Merger dated as of September 22,
1995, and as amended by Amendment No. 1 thereto dated as of
August 8, 1996 (the "Merger Agreement"), among TW Parent,
Holdco, Time Warner Acquisition Corp., a Delaware corporation
and direct wholly-owned subsidiary of Holdco ("Delaware Sub"),
TW Acquisition Corp., a Georgia corporation and direct wholly-
owned subsidiary of Holdco ("Georgia Sub"), and Turner
Broadcasting System, Inc., a Georgia corporation ("TBS").
B. The Merger Agreement provides for the merger of
Delaware Sub into TW Parent (the "TW Merger") and the
simultaneous merger of Georgia Sub into TBS (the "TBS Merger"
and, collectively with the TW Merger, the "Mergers"), in a
transaction in which the outstanding capital stock of TW Parent
and TBS, respectively, will be converted into capital stock of
Holdco, and each of TW Parent and TBS will become a direct
wholly-owned subsidiary of Holdco. The Mergers are intended to
qualify as tax-free exchanges pursuant to Section 351 of the
Internal Revenue Code of 1986, as amended (the "Code").
C. Reference is also made to that certain Second
Amended and Restated LMC Agreement dated as of September 22,
1995 (the "LMC Agreement"), among TW Parent, Holdco, LMC Parent,
TCITP and certain subsidiaries of TCITP named therein (TCITP and
such subsidiaries, collectively, the "Shareholders"). TCITP is a
direct wholly-owned subsidiary of LMC Parent. The LMC Agreement
provides for, among other things, the Shareholders to vote all
shares of TBS capital stock owned by the Shareholders in favor
of the TBS Merger.
D. In order to induce LMC Parent, TCITP and the other
Shareholders to enter into the LMC Agreement, TW Parent and
Holdco have agreed to enter into this Agreement,
which provides for, among other things, the Contribution
Election and the Contribution described herein.
E. The TBS Merger is also subject to the condition
that the waiting period under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), shall have
expired. In connection therewith, TW Parent, TBS,
Tele-Communications, Inc., a Delaware corporation ("TCI"), and
LMC Parent have entered into an Agreement Containing Consent
Order (the "ACCO") dated as of August , 1996, with the Federal
Trade Commission (the "FTC"), which contemplates the issuance of
an Order (the ACCO, together with such Order and the Interim
Agreement attached as Appendix I to the ACCO, in each case as
the same may be amended or modified from time to time hereafter,
the "FTC Consent Decree").
F. This Agreement is the Contribution and Exchange
Agreement contemplated by the LMC Agreement.
NOW, THEREFORE, in consideration of the premises and
other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties agree
as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.1 Certain Definitions. As used in this Agreement,
the following terms have the corresponding meanings:
"Additional Agreements" means the LMC Agreement, the
Registration Rights Agreement, the First Refusal Agreement, the
Distribution Contract, the SSSI Agreement, the Rights Amendment
(if entered into), the SportSouth Agreement, the Sunshine
Agreement and the Program and Digitization Agreement.
"Affiliate", when used with respect to a specified
person, means any other person that directly or indirectly
Controls, is Controlled by or is under common Control with such
first person. The term "affiliated" (whether or not capitalized)
shall have a correlative meaning. Prior to the Effective Time,
no Liberty Party shall be deemed to be an Affiliate of TW
Parent, Holdco or any of their respective subsidiaries and
neither TW Parent, Holdco nor any of their respective Affiliates
shall be deemed to be an Affiliate of any Liberty Party. Prior
to the Effective Time, neither TW Parent nor any of its
Affiliates nor TCI, LMC Parent nor any of their respective
Affiliates shall be deemed to be an Affiliate of TBS or any of
its subsidiaries.
"Agreement" means this Contribution and Exchange
Agreement, including all Schedules hereto.
"Change in Control Event" means any of the following
events: (i) any person becomes an Acquiring Person (as defined
in the Rights Agreement as in effect on September 22, 1995, as
if amended in accordance with the Rights Amendment), including
any person that would otherwise be excluded from the definition
of Acquiring Person in the Rights Agreement by virtue of the
acquisition of shares pursuant to a Qualifying Offer (as defined
in the Rights Agreement as in effect on September 22, 1995, as
if amended in accordance with the Rights Amendment) and
regardless of whether the Rights Agreement continues to be in
effect or is so amended, (ii) TW Parent enters into any
agreement (other than the Elective Merger Agreement, the Merger
Agreement or any amendment thereto) providing for a merger or
consolidation of TW Parent into any other person, a binding
share exchange, or a merger of TW Parent with any other person
in which the shares of capital stock of TW Parent are exchanged
for or converted into the right to receive anything other than
shares of the common stock, par value $1.00 per share, of TW
Parent, or (iii) prior to the closing of the Mergers, Holdco
ceases to be a wholly owned subsidiary of TW Parent or enters
into any agreement (other than the Merger Agreement or any
amendment thereto) that would result in Holdco ceasing to be a
wholly-owned subsidiary of TW Parent.
"Closing Date" means the date on which the Mergers are
consummated, pursuant to Section 1.02 of the Merger Agreement.
"Communications Laws" means the Communications Act of
1934 (as amended and supplemented from time to time and any
successor statute or statutes regulating telecommunications
companies) and the rules and regulations (and interpretations
thereof and determinations with respect thereto) promulgated,
issued or adopted from time to time by the FCC. All references
herein to the Communications Laws shall include as of any
relevant date in question the Communications Laws as then in
effect (including any Communications Law or part thereof the
effectiveness of which is then stayed) and as then formally
proposed by the FCC by publication in the Federal Register or
promulgated with a delayed effective date.
"Consideration" means consideration that is identical
in form and value to the aggregate consideration that UCTI would
have been entitled to receive in the TBS Merger, pursuant to the
Merger Agreement, in respect of all shares of capital stock of
TBS held of record by UCTI at the Effective Time, if the
Contribution Election had not been made and UCTI had not
delivered timely notice of an intent to demand appraisal rights
pursuant to any applicable statute.
"Contract" means any agreement, contract, commitment,
indenture, lease, license, instrument, note, bond, security,
undertaking, promise, covenant or legally binding arrangement or
understanding.
"Contributed Assets" means all the issued and
outstanding shares of capital stock of UCTI.
"Control", as to any person, means the possession,
directly or indirectly, of the power to direct or cause the
direction of the management and policies of such person (whether
through ownership of securities, partnership interests or other
ownership interests, by contract, by participation or
involvement in the board of directors, management committee or
other management structure of such person, or otherwise). The
terms "Controlled," "Controlling" and similar variations
(whether or not capitalized) have correlative meanings.
"Distribution Contract" means the Distribution
Contract, substantially in the form of Exhibit 1 to the SSSI
Agreement, to be entered into by Holdco, SpinCo and Satellite at
or prior to the Closing (but will not become effective until the
"Closing" under the SSSI Agreement).
"Effective Time" means the time at which the Mergers
become effective pursuant to the Merger Agreement and applicable
state law.
"FCC" means the Federal Communications Commission and
any successor agency or other agency charged with the
administration of any Communications Law.
"Final Determination" means (i) a decision, judgment,
decree or other order by any court of competent jurisdiction,
which decision, judgment, decree or other order has become final
after all allowable appeals by either party to the action have
been exhausted (it being understood that for purposes of this
definition, the term "allowable appeals" means an appeal taken
or required to be taken under the contest provisions with
respect to the applicable indemnification obligation and
permitted by applicable law) or the time for filing such appeal
has expired, (ii) a closing agreement entered into under Section
7121 of the Code (or comparable state or local law) or any other
binding settlement agreement entered into in connection with an
administrative or judicial proceeding (including any settlement
entered into in accordance with the contest provisions with
respect to the applicable indemnification obligation hereunder)
or (iii) the expiration of the time for instituting a claim for
refund, or if such a claim was filed, the expiration of the time
for instituting suit with respect thereto.
"First Refusal Agreement" means the Stockholders'
Agreement substantially in the form of Exhibit B to the LMC
Agreement, to be entered into by Holdco, TCITP, LBI, SpinCo and
certain other shareholders of TBS at or prior to the Closing.
"Holdco Common Stock" means the common stock, par
value $.01 per share, of Holdco to be issued in the Mergers, and
in the event of any reclassification, recapitalization or other
change in the Holdco Common Stock, or in the event of any
consolidation or merger of Holdco with or into another person
affecting the Holdco Common Stock, such capital stock or
other securities to which a holder of Holdco Common Stock would
be entitled upon the occurrence of such event.
"Horizontal Rule" means the rule promulgated by the
FCC that is set forth at 47 C.F.R. 76.503 on September 22, 1995.
"Judgment" means any order, judgment, writ, decree,
injunction, award or other determination, decision or ruling of
any court, any other Governmental Entity or any arbitrator.
"LBI Consideration" means that portion of the
Consideration that bears the same proportion to the entire
Consideration as the number of shares of UCTI Capital Stock
owned by LBI bears to the total number of shares of UCTI Capital
Stock outstanding, in each case as of the Effective Time,
determined, if the Consideration consists of consideration of
more than one form, on a pro rata basis for all forms of
consideration constituting the Consideration.
"Liberty Party" means LMC Parent and each Affiliate of
LMC Parent that is controlled by LMC Parent from time to time
and, for so long as LMC Parent is an Affiliate of TCI that is
controlled by TCI, also means TCI and each Affiliate of TCI that
is controlled by TCI.
"Liberty Subsidiaries" means TCITP, UCTI, LBI and
Communication Capital Corp.
"LMC Group" means TCITP and all corporations that
would join with TCITP in the filing of a consolidated return for
federal income tax purposes, other than UCTI.
"LMCN-V Common Stock" means the Series LMCN-V Common
Stock of Holdco, having the terms set forth on Exhibit A to the
LMC Agreement.
"person" has the meaning ascribed to such term in the
Merger Agreement and includes any Governmental Entity.
"Program and Digitization Agreement" means the letter
agreement, dated as of ____________, 1996, between Satellite and
TBS with respect to, among other things, the carriage by
Satellite of certain programming services of TBS and Satellite's
non-exclusive right to digitize, compress and reuplink certain
programming services of TBS.
"Registration Rights Agreement" means the LMC
Registration Rights Agreement substantially in the form of
Exhibit E to the LMC Agreement to be entered into by Holdco, LMC
Parent, TCITP and certain subsidiaries of TCITP at or prior to
the Closing.
"Requirement of Law", when used with respect to any
person, means any law, statute, code, rule, regulation or
Judgment, and any interpretation of or determination with
respect to any of the foregoing, of any court or other
Governmental Entity applicable to or binding upon such person,
or to which such person, any of its assets or any business
conducted by it is subject, whether now existing or at any time
hereafter enacted, promulgated, issued, entered or otherwise
becoming effective.
"Rights Agreement" means the Rights Agreement dated as
of January 20, 1994, between TW Parent and Chemical Bank, as
Rights Agent.
"Rights Amendment" means those certain amendments to
the Rights Agreement described in Exhibit F to the Original LMC
Agreement.
"Satellite" means Satellite Services, Inc., a Delaware
corporation.
"SpinCo" means Southern Satellite Systems, Inc., a
Georgia corporation, and any successor thereto by operation of
law.
"Spin-off" means the distribution by TCI of 100% of
the capital stock of SpinCo to holders of record of TCI's
Tele-Communications, Inc. Series A Liberty Media Common Stock
and Tele-Communications, Inc. Series B Liberty Media Group
Common Stock.
"SportSouth Agreement" means that certain Stock
Purchase Agreement dated as of September 22, 1995, between TBS
and LMC Southeast Sports, Inc., and the Exhibits and Schedules
thereto, a copy of which is annexed as Exhibit G to the LMC
Agreement.
"SSSI Agreement" means the SSSI Agreement
substantially in the form of Exhibit D to the LMC Agreement to
be entered into by Holdco and LMC Parent, SpinCo and Satellite
(with respect to certain provisions thereof) at or prior to the
Closing.
A "subsidiary" of any person means another person, an
amount of the voting securities or other voting ownership or
voting partnership interests of which sufficient to elect at
least a majority of its Board of Directors or other governing
body (or, if there are no such voting interests, 50% or more of
the equity interests of which) is owned, directly or indirectly,
by such first person and/or one or more subsidiaries of such
first person.
"Sunshine Agreement" means that certain agreement
substantially in the form of Exhibit H to the LMC Agreement, to
be entered into by Time Warner Entertainment Company, L.P., and
Liberty Sports, Inc., at or prior to the Closing.
A "Takeover Proposal" shall be pending if any bona
fide tender or exchange offer for the TW Parent Common Stock
shall have been commenced or publicly announced and not
terminated or withdrawn, if consummation of such offer in
accordance with its terms would result in a Change in Control
Event. A tender offer will not be deemed to be bona fide that is
not fully financed unless it is made or guaranteed by a person
whose senior debt securities have investment grade ratings in
one of the four highest investment grade categories.
"Tax Returns" mean all Federal, state, local and
foreign tax returns, declarations, statements, reports,
schedules, forms and information returns and any amended tax
return relating to Taxes.
"Taxes" mean all Federal, state, local and foreign
taxes, and other assessments of a similar nature (whether
imposed directly or through withholding), including any
interest, additions to tax, or penalties applicable thereto.
"TBS Class C Preferred Stock" means the Class C
Preferred Stock, par value $.125 per share, of TBS.
"TBS Stock Agreements" means, individually and
collectively, (a) the Investors Agreement dated as of June 3,
1987, among TBS and the original holders of the TBS Class C
Preferred Stock; (b) the Shareholders' Agreement dated as of
June 3, 1987, as amended by the First Amendment dated as of
April 15, 1988, among TBS, R.E. Turner, III, and the original
holders of the TBS Class C Preferred Stock; (c) the Voting
Agreement dated as of June 3, 1987, among certain holders of TBS
Class C Preferred Stock and (d) the Agreement dated as of June
3, 1987, among TW Parent, TCITP and certain other holders of TBS
Class C Preferred Stock.
"TCI" means Tele-Communications, Inc., a Delaware
corporation.
"TCITP Consideration" means that portion of the
Consideration that bears the same proportion to the entire
Consideration as the number of shares of UCTI Capital Stock
owned by TCITP bears to the total number of shares of UCTI
Capital Stock outstanding, in each case as of the Effective
Time, determined, if the Consideration consists of consideration
of more than one form, on a pro rata basis for all forms of
consideration constituting the Consideration.
"TW Parent Common Stock" means the common stock, par
value $1.00 per share, of TW Parent on September 22, 1995, and
in the event of any reclassification, recapitalization or other
change in the TW Parent Common Stock, or in the event of any
consolidation or merger of TW Parent with or into another person
affecting the TW Parent Common Stock, such capital stock or
other securities to which a holder of TW Parent Common Stock
would be entitled upon the occurrence of such event.
"UCTI" means United Cable Turner Investment Inc., a
Colorado corporation.
"Voting Holdco LMC Common Stock" means the Series LMC
Common Stock of Holdco, having the terms set forth on Exhibit C
to the LMC Agreement.
1.2 Additional Definitions. The following additional
terms have the meaning ascribed thereto in the Section indicated
below next to such term:
Defined Term Section Defined In
Closing 2.2
Code Recital B
contest rights 3.4(a)
Contribution 2.1
Contribution Election 2.1
Delaware Sub Recital A
Georgia Sub Recital A
Governmental Entity 4.1(d)
Holdco Preamble
HSR Act 4.1(d)
Liens 4.1(b)
LBI Preamble
LMC Agreement Recital C
LMC Parent Recital C
Material TW Parent Subsidiary 4.2(a)
Merger Agreement Recital A
Mergers Recital B
Proprietary Information 5.3
Representatives 5.3
Scheduled Closing Date 2.5
SEC 4.2(a)
Shareholders Recital C
Straddle Period 3.1(c)
Tax Indemnified Party 3.4(e)
Tax Indemnifying Party 3.4(e)
TBS Recital A
TBS Merger Recital B
TBS Shares 4.1(b)
TCITP Preamble
TW Material Adverse Effect 4.2(a)
TW Merger Recital B
TW Parent Preamble
TW Parent Subsidiary 4.2(a)
TWE 4.2(a)
UCTI Capital Stock 4.1(c)
UCTI Material Adverse Effect 4.1(a)
UCTI Stock Transfer 3.7
1.3 Terms Generally. The definitions in Sections 1.1
and 1.2 shall apply equally to both the singular and plural
forms of the terms defined. Whenever the context may require,
any pronoun shall include the corresponding masculine, feminine
and neuter forms. The words "include", "includes" and
"including" shall be deemed to be followed by the phrase
"without limitation". The words "herein", "hereof" and
"hereunder" and words of similar import refer to this Agreement
(including Schedules) in its entirety and not to any part hereof
unless the context shall otherwise require. All references
herein to Articles, Sections and Schedules shall be deemed
references to Articles and Sections of, and Schedules to, this
Agreement unless the context shall otherwise require. Unless the
context shall otherwise require, any references to any agreement
or other instrument or statute or regulation are to it as
amended and supplemented from time to time (and, in the case of
a statute or regulation, to any successor provisions). Any
reference in this Agreement to a "day" or number of "days"
(without the explicit qualification of "business") shall be
interpreted as a reference to a calendar day or number of
calendar days. If any action or notice is to be taken or given
on or by a particular calendar day, and such calendar day is not
a business day, then such action or notice shall be deferred
until, or may be taken or given on, the next business day.
ARTICLE II
THE CONTRIBUTION
2.1 Right to Make Contribution. LMC Parent shall have
the right and option, exercisable by notice given to TW Parent
and Holdco at least ten business days prior to the Scheduled
Closing Date (the "Contribution Election"), to cause TCITP and
LBI to contribute the Contributed Assets to Holdco in exchange
for the Consideration (the "Contribution"). The Contribution is
intended to qualify as a tax-free exchange pursuant to Section
351 of the Code, upon and subject to the terms and conditions of
this Agreement.
2.2 Closing. If LMC Parent makes the Contribution
Election, the closing of the Contribution (the "Closing") will
take place on the Closing Date, concurrently with the
consummation of the Mergers.
2.3 Exchange of Certificates. At the Closing, (a) LMC
Parent shall cause TCITP to deliver to Holdco one or more stock
certificates representing in the aggregate all the Contributed
Assets held of record by TCITP, and shall cause LBI to deliver
to Holdco one or
more stock certificates representing in the aggregate all the
Contributed Assets held of record by LBI, in each case duly
endorsed for transfer or accompanied by stock powers duly
endorsed for transfer, and (b) Holdco shall deliver to TCITP and
LBI, respectively, (i) one or more stock certificates, duly
executed and registered in the name of TCITP, representing in
the aggregate the TCITP Consideration and (ii) one or more
certificates, duly executed and registered in the name of LBI,
representing in the aggregate the LBI Consideration. Until
surrendered as contemplated by this Article II, the Contributed
Assets shall be deemed from and after the Effective Time to
represent only the right to receive the Consideration. The
Consideration issued and paid in accordance with this Article II
shall be deemed to have been issued and paid in full
satisfaction of all rights pertaining to the Contributed Assets.
No interest will be paid or will accrue on any cash payable in
lieu of any fractional shares constituting part of the
Consideration.
2.4 Effectiveness of the Contribution. The
Contribution shall be effective, and all deliveries pursuant to
Section 2.3 shall be conclusively deemed to have occurred,
concurrently with the effectiveness of the Mergers at the
Effective Time.
2.5 Scheduled Closing Date; Changes in Election. TW
Parent shall give LMC Parent notice of the date on which the
closing of the Mergers is scheduled to occur (the "Scheduled
Closing Date"), at least 20 days prior thereto, and shall give
LMC Parent such prior notice of any changes in the Scheduled
Closing Date as shall be reasonable under the circumstances. LMC
Parent shall have the right to revoke its election pursuant to
Section 2.1 at any time prior to three business days prior to
the Effective Time.
2.6 Assignment and Delegation of this Agreement.
Concurrently with the effectiveness of the Spin-off, LMC Parent
shall assign and delegate to SpinCo, and SpinCo shall assume
from LMC Parent, all rights and obligations of LMC Parent under
this Agreement as of the date thereof, and SpinCo will from and
after such date be bound by, and entitled to the benefit of this
Agreement, with the same effect as if SpinCo had been an
original party and signatory to this Agreement, in lieu of LMC
Parent, and as if the representations and warranties of LMC
Parent made herein, and the obligations of LMC Parent contained
herein to be performed on and after the date of the Spin-off,
were in each case the representations, warranties and
obligations of SpinCo. In that connection, on the date of the
Spin-off, SpinCo shall execute and deliver to each of the other
parties hereto a counterpart of this Agreement, and SpinCo and
each of the other parties hereto shall execute and deliver to
LMC Parent an unconditional release of all obligations of LMC
Parent hereunder (whether or not known or suspected), in such
form as LMC Parent and its counsel shall reasonably request.
Without limiting the generality of any of the foregoing, on the
date of the Spin-off, upon delivery to the other parties hereto
of the counterpart to this Agreement referred to in the
immediately preceding sentence, SpinCo shall be deemed to make
the representation and warranty set forth in Section 4.1(d), for
the benefit
of LMC Parent and each other party hereto, as of such date and
as if all references therein to LMC Parent, TCITP and LBI
referred instead to SpinCo.
ARTICLE III
CERTAIN POST-CLOSING COVENANTS
3.1 Obligation of TCITP to Indemnify; TCI Guarantee.
(a) TCITP hereby assumes and shall be liable for, and shall
indemnify and hold UCTI, Holdco and the Affiliates of Holdco
harmless from and against, (i) all liability for Taxes of UCTI
for taxable years or portions thereof ending on or prior to the
Closing Date (including any Straddle Period pursuant to Section
3.1(c)), (ii) all liability (as a result of Treasury Regulation
Section 1.1502-6(a) or otherwise) for Taxes of any person other
than UCTI with which prior to the Closing Date UCTI joins or has
ever joined (or is or ever has been required to join) in filing
any consolidated, combined, unitary or aggregate Tax Return, and
(iii) subject to the representations, warranties, covenants and
agreements of Holdco and TW Parent set forth in Section 3.7, all
liability for Taxes of UCTI arising as a result of the
Contribution, in each case on an after-Tax basis. TCI hereby
unconditionally and irrevocably guarantees all obligations and
liabilities assumed by TCITP pursuant to this Section 3.1(a)
(subject, in the case of the obligations and liabilities assumed
by TCITP for Taxes of UCTI arising as a result of the
Contribution, to the representations, warranties, covenants and
agreements of Holdco and TW Parent set forth in Section 3.7).
(b) All Taxes of UCTI for which TCITP is not required
to indemnify UCTI, Holdco and the Affiliates of Holdco pursuant
to Section 3.1(a) shall be the obligation of UCTI, and UCTI
shall be liable for, and shall indemnify and hold the members of
the LMC Group harmless from and against, all such liabilities,
on an after-Tax basis.
(c) For purposes of this Agreement, each Tax liability
for a taxable year that includes, but does not end on, the
Closing Date (a "Straddle Period") shall be allocated, based
upon a "closing of books," between the period ending on the
Closing Date and the period beginning the day after the Closing
Date, as if each such period were a taxable year.
3.2 Refunds. Any refunds of Taxes or any credit
against Taxes of UCTI, Holdco and the Affiliates of Holdco with
respect to taxable years or portions thereof ending on or prior
to the Closing Date (when and to the extent applied by UCTI
against any Tax liability that TCITP has not assumed pursuant to
Section 3.1(a), resulting in a tax benefit to UCTI that it
otherwise would not have realized in the absence of such credit)
(including any interest relating to any such refunds or credits)
shall be for the account of TCITP, and are hereby and shall be
assigned to TCITP, and any other refunds of Taxes or credits
against Taxes of UCTI shall be for the account of Holdco. Any
refunds or credits with respect to Straddle Periods shall
be allocated under the principles set forth in Section 3.1(c).
Holdco shall forward to, or reimburse TCITP for, any such
refunds or credits and interest due TCITP, promptly after
receipt thereof, and TCITP shall forward to Holdco any such
refunds or credits and interest due Holdco, promptly after
receipt thereof. In either case, the party entitled to such
refund or credit shall reimburse the other party to the extent
of any net Tax cost imposed on such other party in connection
with the receipt of such refund or credit. Each party hereto
shall cooperate with the other party as reasonably requested in
making such filings as may be necessary and appropriate to seek
any such refunds or credits.
3.3 Final Returns. TCITP shall prepare or cause to be
prepared any Tax Returns to be filed that relate to any period
ending on or prior to the Closing Date. All such Tax Returns
shall be prepared in a manner consistent with prior years. TCITP
and Holdco shall jointly prepare and control any Tax Return of
UCTI for Straddle Periods in a manner consistent with prior
years. Each party shall promptly respond to all reasonable
requests by the other party for information necessary to prepare
and file any such Tax Returns.
3.4 Conduct of Audits and Disputes.
(a) Contest Rights. A party who has "contest rights"
with respect to an asserted Tax liability, Tax refund claim or
Tax credit claim shall have the right (but not the obligation),
at its own expense, to negotiate, settle or contest such
asserted Tax liability, refund claim or credit claim, in its own
name or in the name of the other party or its Affiliates, as
appropriate, all in accordance with the terms of this Section
3.4. Such contest rights shall include, but not be limited to,
(i) the determinations (x) whether any action shall initially be
by way of judicial or administrative proceedings, or both, (y)
whether any such asserted Tax liability shall be contested by
resisting payment thereof or by paying the same and seeking a
refund thereof and (z) if judicial action is undertaken, the
court or other judicial body before which such action shall be
commenced and (ii) the right to control any such proceedings or
actions.
(b) Claims Controlled by TCITP. Subject to paragraphs
(d), (e) and (f) of this Section 3.4, TCITP (and not UCTI) shall
have contest rights with respect to any asserted Tax liability,
refund claim or credit claim of UCTI to the extent that TCITP is
required to indemnify against such asserted Tax liability
pursuant to Section 3.1(a) or is entitled to such refund or
credit pursuant to Section 3.2. Holdco shall have the right to
participate in and be consulted with respect to any such contest
undertaken by TCITP. TCITP shall not settle any Tax liability,
refund claim or credit claim without the prior written consent
of Holdco, which consent shall not be unreasonably withheld.
(c) Claims Controlled by Holdco. Subject to paragraphs
(d), (e) and (f) of this Section 3.4, Holdco (and not TCITP)
shall have contest rights with respect to any asserted Tax
liability, refund claim or credit claim of UCTI to the extent
that UCTI is required to indemnify against such asserted Tax
liability pursuant to Section 3.1(b) or is entitled to such
refund or credit pursuant to Section 3.2. TCITP and its
Affiliates shall have the right to participate in and be
consulted with respect to any such contest undertaken by Holdco.
Holdco shall not settle any Tax liability, refund claim or
credit claim without the written consent of TCITP, which consent
shall not be unreasonably withheld.
(d) Contests Involving Multiple Issues. If any contest
shall involve issues with respect to which both TCITP and Holdco
have contest rights hereunder, the parties will cooperate in any
such contest, and will endeavor to permit each party to control
the contest of issues for which it has contest rights. In the
event there is a disagreement among the parties over matters
(such as choice of forum) relating to issues the contest of
which are controlled by more than one party, such disagreement
shall be resolved in favor of the party who controls the contest
of the issues therein which, in the aggregate, would result in
the largest Tax liability if resolved unfavorably or the largest
Tax refund if resolved favorably.
(e) Notice; Cooperation. If UCTI, Holdco, any
Affiliate of Holdco or any member of the LMC Group (in either
case the "Tax Indemnified Party") receives any written
communication from a taxing authority regarding any actual or
proposed assessment, official inquiry or proceeding that could
give rise to an official determination with respect to any
asserted Tax liability or refund claim for any period for which
TCITP or UCTI, respectively (the "Tax Indemnifying Party"), may
be liable (in the case of a liability) or may be entitled (in
the case of a refund claim) pursuant to this Agreement, such Tax
Indemnified Party (i) shall within 30 days of receipt of such
written communication so notify such Tax Indemnifying Party in
writing, (ii) shall request in such notice that such Tax
Indemnifying Party notify it in writing if it intends to
exercise its contest rights hereunder, and (iii) shall, prior to
and for at least 30 days after so notifying such Tax
Indemnifying Party (or, if less, within a period ending 5 days,
including any extension, prior to the date on which the Tax
Indemnified Party is required to take action pursuant to such
written communication), refrain from making any payment of any
Tax claimed and forebear from any settlement negotiations or
compromises with respect to such proposed adjustment. The Tax
Indemnifying Party agrees to notify the Tax Indemnified Party in
writing within such 30 day period if it intends to exercise its
contest rights hereunder with respect to the asserted Tax
liability, refund claim or credit claim. The parties hereto
agree to cooperate with each other in connection with any
examination process with respect to any asserted Tax liability,
refund claim or credit claim and shall make available on a
reasonable basis to each other any personnel, books, records or
other documents necessary or appropriate for participation in
such process.
(f) Payment. If, with respect to any asserted Tax
liability that is the subject of an indemnification obligation
hereunder, the party with contest rights with respect to such
Tax liability elects not to contest such asserted Tax liability
or elects to contest such asserted Tax liability by causing the
Tax Indemnified Party to pay the deficiency asserted and then
seek a
refund thereof, the Tax Indemnifying Party shall advance the
amount of the Tax liability so asserted to such Tax Indemnified
Party to the extent that the Indemnified Party is required to
pay such contested amount. Otherwise, such Tax Indemnifying
Party shall pay the amount of any indemnification obligation
(net of any payment made pursuant to the preceding sentence) to
such Tax Indemnified Party no later than 5 days after any Final
Determination with respect to the Tax giving rise to such
indemnity obligation.
(g) Obligations of Tax Indemnified Party. The failure
of a Tax Indemnified Party to comply with any of its obligations
under this Section 3.4 shall not relieve any Tax Indemnifying
Party or any other party of its indemnity obligations hereunder,
except to the extent (and only to the extent) that such Tax
Indemnifying Party or other party is actually prejudiced by such
failure.
3.5 Carrybacks. No losses or credits of UCTI arising
in taxable years beginning after the Closing Date may be carried
back to taxable years ending on or prior to the Closing Date,
except to the extent required by law.
3.6 LMC Agreement; Covered TW Securities. If the
Contribution Election is made, then upon the Closing, (a) LBI
shall automatically and without further action become a party to
the LMC Agreement, as a Shareholder (as such term is defined
therein), with the same effect as if LBI were an original party
thereto and were named as a Shareholder therein, and shall be
deemed to have made the appropriate representations, warranties,
covenants and agreements contained therein, and (b) all shares
of Holdco Common Stock or other securities of Holdco issued to
LBI and TCITP as Consideration hereunder (and all shares of
Voting Holdco LMC Common Stock and/or LMCN-V Common Stock for
which such shares may be exchanged pursuant to Section 4.1 of
the LMC Agreement (directly or indirectly and in one or more
exchanges)) shall constitute Covered TW Securities for all
purposes of the LMC Agreement (in addition to and not in lieu of
the Holdco Common Stock to be received in the TBS Merger and
Voting Holdco LMC Common Stock and/or LMCN-V Common Stock
exchanged therefor). If the Contribution Election is made, then
upon the Closing, the LMC Agreement shall be amended to the
effect of this Section 3.6 without further action by the parties
to the LMC Agreement.
3.7 No Liquidation. As of the Closing Date, TW Parent
and Holdco hereby represent, warrant, covenant and agree with
LMC Parent, TCITP and LBI, for the benefit of all members of any
LMC Group, that neither TW Parent nor Holdco has, as of the
Closing Date, any plan or intention to liquidate or dissolve
UCTI or to sell or otherwise transfer or dispose of (or agree to
sell or otherwise transfer or dispose of) any capital stock of
UCTI, or any securities exercisable or exchangeable for, or
convertible into, capital stock of UCTI, or any interest
therein, (a "UCTI Stock Transfer") and Holdco shall not, and TW
Parent shall not permit Holdco to, liquidate or dissolve UCTI
for at least two years following the Closing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.1 Representations and Warranties of LMC Parent,
TCITP and LBI. Each of LMC Parent, TCITP and LBI represents and
warrants to TW Parent and Holdco as follows:
(a) Organization, Standing and Corporate Power. UCTI
is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction of its incorporation
and has the requisite corporate power and authority to carry on
its business as now being conducted. UCTI is duly qualified or
licensed to do business and is in good standing in each
jurisdiction in which the nature of its business or the
ownership or leasing of any property makes such qualification or
licensing necessary, other than in such jurisdictions where the
failure to be so qualified or licensed (individually or in the
aggregate) has not had and is not reasonably likely to have a
material adverse effect on the business, properties, assets,
results of operations or financial condition of UCTI (a "UCTI
Material Adverse Effect"). UCTI has delivered to TW Parent
complete and correct copies of UCTI's Articles of Incorporation
and By-laws, in each case as amended to September 22, 1995. UCTI
is not in violation of any provision of its Articles of
Incorporation or By-laws, except to the extent that any such
violations would not, individually or in the aggregate, have a
UCTI Material Adverse Effect. UCTI does not have any
subsidiaries.
(b) Ownership of TBS Shares. UCTI owns 5,820,452
shares of TBS Class C Preferred Stock (the "TBS Shares"), free
and clear of all pledges, claims, liens, charges, encumbrances,
security interests, options and restrictions of any kind or
nature whatsoever (collectively, "Liens") and the TBS Shares are
not subject, other than pursuant to this Agreement and the TBS
Stock Agreements, to any Contract restricting or otherwise
relating to the disposition, transfer, voting rights or dividend
rights of the TBS Shares. Except for the TBS Shares, UCTI does
not own, directly or indirectly, any capital stock, general or
limited partnership interest or other ownership interest of any
kind in any corporation, partnership, limited liability company,
joint venture or other person.
(c) Capital Structure. The authorized capital stock of
UCTI consists of 30,000 shares of common stock, par value $.01
per share ("UCTI Capital Stock"), of which 20,119.4 shares are
outstanding. All the outstanding shares of UCTI Capital Stock
are validly issued, fully paid and nonassessable. TCITP is the
record owner of 10,000 shares of UCTI Capital Stock
(approximately 50.297% of the total number of such shares
outstanding) and LBI is the record owner of 10,119.4 shares of
UCTI Capital Stock (approximately 49.703% of the total number of
such shares outstanding), which shares are in each case owned
free and clear of any Liens. Except for the UCTI Capital Stock
owned of record by TCITP and LBI, there are no shares of capital
stock or other voting securities of UCTI issued, reserved for
issuance or
outstanding. There are no options, warrants, calls, rights,
commitments, agreements, arrangements, undertakings or other
Contracts of any kind to which UCTI is a party or by which it is
bound relating to any issued or unissued capital stock of UCTI,
or obligating UCTI to issue, transfer, grant or sell any shares
of capital stock of, or other equity interests in, or securities
convertible into or exchangeable for any capital stock or other
equity interests in, UCTI or obligating UCTI to issue, grant,
extend or enter into any such option, warrant, call, right,
commitment, agreement, arrangement or undertaking. There are not
outstanding any contractual obligations of UCTI to repurchase,
redeem or otherwise acquire any shares of capital stock of UCTI,
or to make any investment (in the form of a loan, capital
contribution or otherwise) in any other person.
(d) Authority; Noncontravention. Each of LMC Parent,
TCITP and LBI has the requisite corporate power and authority to
enter into this Agreement and to consummate the transactions
provided for herein. The execution and delivery of this
Agreement by LMC Parent, TCITP and LBI and the consummation by
them of the transactions provided for herein have been duly
authorized by all necessary corporate action on the part of LMC
Parent, TCITP and LBI. This Agreement has been duly executed and
delivered by LMC Parent, TCITP and LBI and constitutes a valid
and binding obligation of each such party, enforceable against
each such party in accordance with its terms (except insofar as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, or by principles governing the
availability of equitable remedies). The execution and delivery
of this Agreement by LMC Parent, TCITP and LBI do not, and the
performance by them of their respective obligations hereunder
and the consummation of the transactions provided for herein
will not, conflict with, or result in any violation of or
default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to the loss of a material
benefit under, or result in the creation of any Lien upon any of
the properties or assets of LMC Parent, TCITP, LBI, UCTI or any
of their subsidiaries under, (i) the Articles of Incorporation
or By-laws of LMC Parent or TCITP or the comparable
organizational documents of LBI, UCTI or any other subsidiary of
LMC Parent or TCITP, (ii) any Contract to which LMC Parent,
TCITP, LBI, UCTI or any other subsidiary of LMC Parent or TCITP
is a party or by which any of them or their respective
properties or assets are bound, other than the TBS Stock
Agreements, as to which no representation is being made, or
(iii) subject to the governmental filings and other matters
referred to in the following sentence and in Sections 3.01(d)
and 3.02(d) of the Merger Agreement, any Requirement of Law
applicable to LMC Parent, TCITP, LBI, UCTI or any other
subsidiary of LMC Parent or TCITP or their respective properties
or assets, other than the Horizontal Rule, as to which no
representation is being made, and other than, in the case of
clauses (ii) and (iii), any such conflicts, violations,
defaults, rights or Liens that individually or in the aggregate
would not (x) have a UCTI Material Adverse Effect, (y) prevent
LMC Parent, TCITP or LBI from performing its obligations under
this Agreement in any material respect or (z) prevent or delay
in any material respect the consummation of any of the
transactions contemplated by this Agreement. No consent,
approval, order or authorization of, or
registration, declaration or filing with, any Federal, state or
local government or any court, administrative agency or
commission or other governmental authority or agency, domestic
or foreign, including the European Union (a "Governmental
Entity"), is required by or with respect to LMC Parent, TCITP or
LBI in connection with the execution and delivery by them of
this Agreement or the consummation by them of the transactions
provided for herein, except for (i) the filing of notification
and report forms under the Hart-Scott-Rodino Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), and
initial acceptance by the FTC of the FTC Consent Decree for
public comment, (ii) such filings with, and orders of, the FCC
as may be required under the Communications Laws in connection
with the transactions contemplated by this Agreement and the
Merger Agreement, (iii) the filing with the SEC of such reports
under Section 13 of the Exchange Act as may be required in
connection with this Agreement, the Merger Agreement and the
transactions contemplated hereby and thereby, (iv) such filings
with, and orders of, cable franchising authorities as may be
required in connection with this Agreement, the Merger Agreement
and the transactions contemplated hereby and thereby and (v)
such other consents, approvals, orders, authorizations,
registrations, declarations and filings which, if not obtained
or made, would not prevent or delay in any material respect the
consummation of any of the transactions contemplated by this
Agreement and the Merger Agreement or otherwise prevent LMC
Parent, TCITP or LBI from performing its obligations under this
Agreement in any material respect or have, individually or in
the aggregate, a UCTI Material Adverse Effect.
(e) Assets and Liabilities. Except for the TBS Shares,
UCTI does not have any assets or liabilities of any nature
(whether accrued, absolute, contingent or otherwise), other than
assets not required by generally accepted accounting principles
to be set forth on a balance sheet of UCTI or in the notes
thereto.
(f) Litigation. Except as disclosed on Schedule
4.1(f), there is no suit, action or proceeding (including any
proceeding by or before the FCC) pending or, to the knowledge of
LMC Parent, TCITP, threatened against or affecting LMC Parent,
TCITP or LBI (and LMC Parent is not aware of any basis for any
such suit, action or proceeding) that, individually or in the
aggregate, could reasonably be expected (i) to have a UCTI
Material Adverse Effect, (ii) to prevent LMC Parent, TCITP or
LBI from performing its obligations under this Agreement or
(iii) to prevent or delay the consummation of any of the
transactions contemplated by this Agreement, and there is no
Judgment outstanding against LMC Parent, TCITP or LBI having, or
which could reasonably be expected to have in the future, a UCTI
Material Adverse Effect. Except as disclosed on Schedule 4.1(f),
there is no suit, action or proceeding (including any proceeding
by or before the FCC) pending or, to the knowledge of LMC
Parent, threatened against or affecting UCTI (and LMC Parent is
not aware of any basis for any such suit, action or proceeding).
(g) Brokers. No broker, investment banker, financial
advisor or other person is entitled to any broker's, finder's,
financial advisor's or other similar fee or commission in
connection with the transactions contemplated by this Agreement
based upon arrangements made by or on behalf of LMC Parent, or
LBI or any Affiliate of LMC Parent, TCITP or LBI.
(h) Taxes.
(i) UCTI has timely filed (or has had timely
filed on its behalf) or will file or cause to be
timely filed, all material Tax Returns required
by applicable law to be filed by it prior to or
as of the Closing Date, including any Tax Return
of any affiliated or combined group that includes
or had included UCTI. All such Tax Returns are,
or will be at the time of filing, true, complete
and correct in all material respects.
(ii) UCTI and each affiliated or combined
group that includes or had included UCTI have
paid (or have had paid on their behalf), or where
payment is not yet due, have established (or have
had established on their behalf and for their
sole benefit and recourse), or will establish or
cause to be established on or before the Closing
Date, an adequate accrual for the payment of, all
material Taxes due with respect to any period
(including any Straddle Period pursuant to
Section 3.01(c)) ending prior to or as of the
Closing Date.
(iii) As of the Closing Date, UCTI will not
have any continuing obligation to LMC Parent,
TCITP or LBI (or to any other person) with
respect to any Taxes.
(i) Compliance with Laws. UCTI has not violated or
failed to comply with any Requirement of Law, except for
violations and failures to comply that could not, individually
or in the aggregate, reasonably be expected to result in a UCTI
Material Adverse Effect.
(j) Consolidated Return. As of the Effective Time, (A)
each of LMC Parent and SpinCo (and, if LMC Parent shall have
designated another person to receive LMCN-V Common Stock
pursuant to the SSSI Agreement, such designated person) is a
member of the same group of corporations filing a consolidated
return for federal income tax purposes as the Liberty
Subsidiaries (the "LMC Affiliated Group"), and (B) except in
connection with the Spin-off (as defined in the SSSI
Agreement), none of LMC Parent, TCITP, SpinCo or their
respective affiliates (other than the holders of the Excluded
Shares, as such term is defined in the LMC Agreement) has any
current plan or intention (i) to transfer any Holdco equity
securities held directly or indirectly by it immediately
following the Closing Date (or to be acquired by it pursuant to
the SSSI Agreement) (any such holder or acquirer, a "Holder") to
any person that is not a member of the LMC Affiliated Group or
(ii) to cause any Holder to cease to be a member of the LMC
Affiliated Group.
(k) ERISA Compliance. Except as would not have a UCTI
Material Adverse Effect, (i) all employee benefit plans or
programs maintained for the benefit of the current or former
employees or directors of UCTI that are sponsored, maintained or
contributed to by UCTI or with respect to which UCTI may have
any liability, including any such plan that is an "employee
benefit plan" as defined in Section 3(3) or ERISA, are in
compliance with all applicable requirements of law, including
ERISA and the Code, and (ii) UCTI does not have any liabilities
or obligations with respect to any such employee benefit plans
or programs, whether accrued, contingent or otherwise, nor to
the knowledge of the executive officers of LMC Parent are any
such liabilities or obligations expected to be incurred.
4.2 Representations and Warranties of TW Parent and
Holdco. Each of TW Parent and Holdco represents and warrants to
LMC Parent, TCITP and LBI as follows:
(a) Organization, Standing and Corporate Power. Each
of TW Parent, Holdco and each of the Material TW Parent
Subsidiaries (as defined below) is a corporation, partnership or
other legal entity duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it is
organized and has the requisite power and authority to carry on
its business as now being conducted. Each of TW Parent and TW
Parent's subsidiaries (each, a "TW Parent Subsidiary") is duly
qualified or licensed to do business and is in good standing in
each jurisdiction in which the nature of its business or the
ownership or leasing of its properties makes such qualification
or licensing necessary, other than in such jurisdictions where
the failure to be so qualified or licensed (individually or in
the aggregate) would not have a material adverse effect on the
business, properties, assets, condition (financial or
otherwise), results of operations or prospects of TW Parent and
the TW Parent Subsidiaries, taken as a whole (a "TW Material
Adverse Effect"). TW Parent has delivered to LMC Parent complete
and correct copies of its Restated Certificate of Incorporation
and By-laws and the certificates of incorporation and by-laws or
comparable organizational documents of the Material TW Parent
Subsidiaries, in each case as amended to September 22, 1995.
Neither TW Parent nor Holdco is in violation of any provision of
its Restated Certificate of Incorporation or By-laws and no
Material TW Parent Subsidiary is in violation of any provision
of its certificate of incorporation, by-laws or comparable
organizational documents, except, in the case of the Material TW
Parent Subsidiaries, to the extent that such violations would
not, individually or in the aggregate, have a TW Material
Adverse Effect. Time Warner Entertainment Company, L.P. ("TWE"),
and each TW Parent Subsidiary that constitutes a significant
subsidiary of TW Parent within the meaning of Rule 1-02 of
Regulation S-X of the rules and regulations promulgated by the
Securities and Exchange Commission ("SEC") (determined without
regard to paragraph (3) of the definition thereof) is referred
to herein as a "Material TW Parent Subsidiary".
(b) Authority; Noncontravention. TW Parent and Holdco
have all requisite corporate power and authority to enter into
this Agreement and to consummate, subject to the stockholder
vote described in Section 4.2(d), the Mergers, the Contribution
and each of the other
transactions provided for in this Agreement. The execution and
delivery of this Agreement by TW Parent and Holdco and the
consummation by them of the Mergers, the Contribution and each
of the other transactions provided for herein have been duly
authorized by all necessary corporate action on the part of TW
Parent and Holdco, subject to the stockholder vote described in
Section 4.2(d). This Agreement has been duly executed and
delivered by TW Parent and Holdco and constitutes a valid and
binding obligation of each TW Parent and Holdco, enforceable
against each such party in accordance with its terms (except as
enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, or by principles governing the
availability of equitable remedies). Except as set forth in
Schedule 4.2(b), the execution and delivery of this Agreement by
TW Parent and Holdco and the consummation by them of the
Mergers, the Contribution and each of the other transactions
provided for in this Agreement and compliance with the
provisions hereof will not conflict with, or result in any
violation of or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to the loss of
a material benefit under, or result in the creation of any Lien
upon any of the properties or assets of TW Parent or any TW
Parent Subsidiary under, (i) the Restated Certificate of
Incorporation or By-laws of TW Parent or the comparable
organizational documents of any TW Parent Subsidiary, (ii) any
Contract to which TW Parent or any TW Parent Subsidiary is a
party or by which any of them or their respective properties or
assets are bound, other than the TBS Stock Agreements, as to
which no representation is being made, or (iii) subject to the
governmental filings and other matters referred to in the
following sentence, any Requirement of Law applicable to TW
Parent or any other TW Parent Subsidiary or their respective
properties or assets, other than the Horizontal Rule, as to
which no representation is being made, and other than, in the
case of clauses (ii) and (iii), any such conflicts, violations,
defaults, rights or Liens that individually or in the aggregate
would not (x) have a TW Material Adverse Effect, (y) prevent TW
Parent or Holdco from performing its respective obligations
under this Agreement in any material respect or (z) prevent or
delay in any material respect the consummation of the Mergers or
any of the transactions provided for in this Agreement. No
consent, approval, order or authorization of, or registration,
declaration or filing with, any Governmental Entity is required
by or with respect to TW Parent or Holdco in connection with the
execution and delivery of this Agreement by TW Parent and Holdco
or the consummation by them of the Mergers and each of the
transactions provided for in this Agreement, except for (i) the
filing of notification and report forms under the HSR Act and
initial acceptance by the FTC of the FTC Consent Decree for
public comment, (ii) such filings with, and orders of, the FCC
under the Communications Laws as may be required in connection
with the transactions contemplated by this Agreement and the
Merger Agreement, (iii) the filing with the SEC of such reports
under Sections 13 and 16(a) of the Exchange Act as may be
required in connection with this Agreement, the Merger Agreement
and the transactions contemplated hereby and thereby, (iv) such
filings with, and orders of, cable franchising authorities as
may be required in connection with this Agreement, the Merger
Agreement and the transactions contemplated hereby and thereby
and (v) such other consents, approvals, orders, authorizations,
registrations, declarations and filings which, if not obtained
or made, would not prevent or delay in any
material respect the consummation of any of the transactions
contemplated by this Agreement and the Merger Agreement or
otherwise prevent TW Parent or Holdco from performing its
obligations under this Agreement or the Merger Agreement in any
material respect or have, individually or in the aggregate, a TW
Material Adverse Effect.
(c) Litigation. Except as disclosed in any required
report, schedule, form, statement or other document filed with
the SEC since December 31, 1992, or in Schedule 4.2(c), there is
no suit, action or proceeding (including any proceeding by or
before the FCC) pending or, to the knowledge of TW Parent,
threatened against or affecting TW Parent or any of the TW
Parent Subsidiaries (and TW Parent is not aware of any basis for
any such suit, action or proceeding) that, individually or in
the aggregate, could reasonably be expected to prevent TW Parent
from performing its obligations under this Agreement in any
material respect. As of the date of this Agreement, except as
disclosed in any required report, schedule, form, statement or
other document filed with the SEC since December 31, 1992, or in
Schedule 4.2(c), there is no suit, action or proceeding pending,
or, to the knowledge of TW Parent, threatened, against TW Parent
or any of the TW Parent Subsidiaries (and TW Parent is not aware
of any basis for any such suit, action or proceeding) that,
individually or in the aggregate, could reasonably be expected
to prevent or delay in any material respect the consummation of
any of the transactions contemplated by this Agreement or the
Merger Agreement.
(d) Voting Requirements. The adoption of the Merger
Agreement by the holders of a majority in voting power of the
outstanding TW Parent Common Stock and the outstanding voting
preferred stock, par value $1.00 per share, of TW Parent, voting
together as a single class, is the only vote of the holders of
any class or series of TW Parent's capital stock necessary to
approve this Agreement, the Merger Agreement, the Additional
Agreements and the transactions contemplated hereby and thereby.
(e) Brokers. No broker, investment banker, financial
advisor or other person, other than Morgan Stanley & Co
Incorporated, the fees and expenses of which will be paid by TW
Parent, is entitled to any broker's, finder's, financial
advisor's or other similar fee or commission in connection with
the transactions contemplated by this Agreement based upon
arrangements made by or on behalf of TW Parent or any Affiliate
of TW Parent.
(f) Holdco Charter. Holdco has delivered to LMC Parent
complete and correct copies of its Certificate of Incorporation
and By-laws and the Holdco Rights Plan, if any, in each case as
amended to September 22, 1995, including all certificates of
designation. No amendments to any of the foregoing have been
authorized, approved or adopted and there is no commitment,
arrangement or understanding by Holdco to effect any such
amendment, except as provided in the Merger Agreement. All
shares of capital stock of Holdco that may be issued pursuant to
this Agreement will be, when issued, duly authorized, validly
issued, fully paid and nonassessable and not subject to
preemptive rights.
ARTICLE V
CERTAIN COVENANTS
5.1 Conduct of Business.
(a) Business of UCTI. On the Closing Date: (i) UCTI
will own the TBS Shares, free and clear of all Liens, other
adverse claims or voting or other rights of third parties other
than the TBS Stock Agreements and other than any claims or
rights of TW Parent, Holdco and their respective subsidiaries
under this Agreement, the Merger Agreement or any Additional
Agreement; (ii) UCTI will not have any liabilities or
obligations, other than any liabilities or obligations under
this Agreement, the Merger Agreement, any Additional Agreements
to which it is a party and the TBS Stock Agreements; (iii) UCTI
will not have any employees; and (iv) UCTI will not have any
material properties or assets, other than the TBS Shares, and
will not be engaged in the conduct of any business or other
activities, other than the ownership, directly or indirectly, of
TBS Shares.
(b) Assumption; Indemnification. Prior to or at the
Closing (i) LMC Parent, TCITP and/or LBI shall assume all
liabilities and obligations of UCTI, (ii) LMC Parent, TCITP and
LBI shall agree to indemnify TW Parent, Holdco and any
subsidiaries of TW Parent or Holdco and the respective officers,
employees, stockholders, agents, and representatives of each of
the foregoing against, and shall hold them harmless from, any
loss, liability, claim, damage or expense arising from any
liability or obligation of UCTI other than those relating to the
business of UCTI subsequent to the Closing or otherwise first
arising or accruing after the Closing, and (iii) UCTI shall
transfer to LMC Parent, TCITP and/or LBI all assets of UCTI
other than the TBS Shares, in each case pursuant to agreements
in form and substance satisfactory to TW Parent.
(c) Certain Actions by UCTI. During the period from
September 22, 1995, to the Closing, UCTI shall not (i) issue any
securities (or rights to acquire securities), (ii) incur any
obligation other than any obligation to be assumed by TCITP
and/or LBI on or prior to the Closing Date; (iii) make any Tax
election or settle or compromise any Tax liability or refund or
(iv) amend its certificate of incorporation or by-laws in any
respect, without in any such case the prior approval of TW
Parent, which will not be unreasonably withheld or delayed.
(d) Advice of Changes. TCITP and TW Parent shall
promptly advise the other orally and in writing of any change or
event having, or which, insofar as can reasonably be foreseen,
would have, a UCTI Material Adverse Effect or a TW Material
Adverse Effect, as applicable.
5.2 Access to Information. During the period from the
making of the Contribution Election through the Closing Date,
UCTI shall afford to TW Parent and its officers, employees,
accountants, counsel, financial advisors and other
representatives reasonable access during normal business hours
to all properties, books, contracts, commitments, personnel and
records of UCTI, and shall furnish promptly to TW Parent such
information concerning its business, properties and personnel as
TW Parent may reasonably request.
5.3 Confidentiality. TW Parent and Holdco shall, and
shall cause their affiliates, directors, officers, employees,
agents and controlling persons (collectively, "Representatives")
to, (i) keep confidential all Proprietary Information of UCTI
and its Affiliates disclosed pursuant to Section 5.2 and not
disclose or reveal any such Proprietary Information (as defined
below) to any person other than those Representatives of TW
Parent and Holdco who are participating in effecting the
transactions contemplated hereby or who otherwise need to know
such Proprietary Information, (ii) use such Proprietary
Information only in connection with consummating the
transactions contemplated hereby and enforcing TW Parent's and
Holdco's rights hereunder, and (iii) not use Proprietary
Information in any manner detrimental to LMC Parent, TCITP or
its Affiliates. In the event that TW Parent, Holdco or any
Representative is requested pursuant to, or required by,
applicable law or regulation or by legal process to disclose any
Proprietary Information, TW Parent shall provide LMC Parent or
TCITP with prompt notice of such request to enable LMC Parent or
TCITP to seek an appropriate protective order. TW Parent's and
Holdco's obligations hereunder with respect to Proprietary
Information that (i) is disclosed to a third party with LMC
Parent's written approval, (ii) is required to be produced under
order of a court of competent jurisdiction or other similar
requirements of a governmental agency, or (iii) is required to
be disclosed by applicable law or regulation, will, subject in
the case of clauses (ii) and (iii) to TW Parent's and Holdco's
compliance with the preceding sentence, cease to the extent of
the disclosure so consented to or required, except to the extent
otherwise provided by the terms of such consent or covered by a
protective order. If TW Parent and Holdco use a degree of care
to prevent disclosure of the Proprietary Information that is at
least as great as the care they normally take to preserve their
own information of a similar nature, then they shall not be
liable for any disclosure that occurs despite the exercise of
that degree of care, and in no event shall TW Parent or Holdco
be liable for any indirect, punitive, special or consequential
damages under this Section 5.3. In the event this Agreement is
terminated, TW Parent and Holdco shall, if so requested by LMC
Parent, promptly return or destroy all of the Proprietary
Information, including all copies, reproductions, summaries,
analyses or extracts thereof or based thereon in the possession
of TW Parent, Holdco or their Representatives; provided,
however, that TW Parent and Holdco shall not be required to
return or cause to be returned summaries, analyses or extracts
prepared by either of them or their Representatives, but shall
destroy (or cause to be destroyed) the same upon request of LMC
Parent.
For purposes of this Section 5.3, "Proprietary
Information" means all proprietary or confidential information
that is furnished to TW Parent or its Representatives, pursuant
to Section 5.2, regardless of the manner in which it is
furnished. "Proprietary Information" does not include, however,
information which (a) has been or in the future is published or
now or in the future is otherwise in the public domain through
no fault of TW Parent, Holdco or any of their Representatives,
(b) was available to TW Parent or Holdco on a non-confidential
basis prior to its disclosure pursuant to Section 5.2, (c)
becomes available to TW Parent or Holdco on a non-confidential
basis from a person other than LMC Parent or its Representatives
who is not otherwise bound by a confidentiality agreement with
LMC Parent or its Representatives, and is not otherwise
prohibited from transmitting the information to TW Parent or
Holdco, or (d) is independently developed by TW Parent or Holdco
through persons who have not had, either directly or indirectly,
access to or knowledge of such information.
Notwithstanding any other terms of this Section 5.3,
after the Closing, the terms of this Section 5.3 shall not apply
to any Proprietary Information, to the extent such Proprietary
Information relates to the TBS Shares or to the business or
assets of TBS or UCTI.
5.4 Reasonable Efforts; Notification. (a) If LMC
Parent makes the Contribution Election, upon the terms and
subject to the conditions set forth in this Agreement, each of
the parties agrees to use reasonable efforts (i) to take, or
cause to be taken, all actions, and to do, or cause to be done,
and to assist and cooperate with each other in good faith in
doing, all things necessary, to obtain, in the most expeditious
manner practicable, all actions or nonactions, waivers, consents
and approvals from Governmental Entities and the making of all
necessary registrations and filings with Governmental Entities
in each case as may be necessary for the consummation of the
Contribution and the other transactions contemplated by this
Agreement or to avoid an action or proceeding by any
Governmental Entity, and (ii) to defend any lawsuits or other
legal proceedings, whether judicial or administrative,
challenging this Agreement or the consummation of the
transactions contemplated by this Agreement, including seeking
to have any stay or temporary restraining order entered by any
court or other Governmental Entity vacated or reversed;
provided, however, that nothing in this Section 5.4 shall
require any such person (i) to agree to, approve, or otherwise
be bound by or satisfy any condition of the kind referred to in
Section 2.1(d) of the LMC Agreement, (ii) to agree to enter into
or be bound by any settlement or judgment (other than the FTC
Consent Decree) or (iii) subject to Section 4.1 of the LMC
Agreement, to agree to any change to the terms of this Agreement
or any of the other Additional Agreements.
(b) Between September 22, 1995 and the Closing, each
party will give prompt written notice to the other party of: (i)
any information that indicates that any of its representations
or warranties contained herein was not true and correct as of
September 22, 1995, or will not be true and correct at and as of
the Closing, with the same force and effect as if made at and as
of the Closing (except for changes permitted or contemplated by
this
Agreement), (ii) the occurrence of any event that will result,
or has a reasonable prospect of resulting, in the failure of any
condition specified in Article VI hereof to be satisfied, (iii)
any notice or other communication from any third party alleging
that the consent of such third party is or may be required in
connection with the transactions contemplated by this Agreement
or that such transactions otherwise may violate the rights of or
confer remedies upon such third party and (iv) any notice of, or
other communication relating to, any litigation referred to in
Sections 6.2(c) or any order or judgment entered or rendered
therein.
5.5 Public Announcements. TW Parent and Holdco, on the
one hand, and LMC Parent, TCITP and LBI, on the other hand, will
consult with each other before issuing, and provide each other
the opportunity to review and comment upon, any press release or
other public statements with respect to the transactions
contemplated by this Agreement, and shall not issue any such
press release or make any such public statement prior to such
consultation, except as may be required by applicable law, court
process or by obligations pursuant to any listing agreement with
any national securities exchange or pursuant to applicable
requirements of any national securities association.
5.6 Fees and Expenses. All fees and expenses incurred
in connection with the Contribution, this Agreement and the
other transactions contemplated hereby shall be paid by the
party incurring such fees or expenses, whether or not the
Contribution is consummated.
5.7 Stock Exchange Listing. Holdco shall use
reasonable efforts to cause all shares of Holdco Common Stock to
be issued as Consideration hereunder (or issuable in exchange
for or upon conversion of any Voting Holdco LMC Common Stock or
LMCN-V Common Stock issued to any Liberty Party pursuant to this
Agreement or any Additional Agreement) to be approved for
listing on the New York Stock Exchange, subject to official
notice of issuance, prior to the Closing Date.
5.8 Tax Treatment. If the Contribution Election is
made, each of TW Parent, on the one hand, and LMC Parent, TCITP
and LBI, on the other hand, shall use commercially reasonable
efforts to cause the Contribution to qualify as a tax-free
exchange under Section 351 of the Code.
5.9 Transfer and Real Property Transfer Gains Taxes.
TW Parent (and not TBS or any Liberty Party) shall be
responsible for any liabilities, without deduction or
withholding from any amount payable to any Liberty Party
pursuant to this Agreement or to the TBS stockholders pursuant
to the Merger Agreement, arising under any New York State Real
Estate Transfer Tax, New York State Tax on Gains Derived from
certain Real Property Transfers, New York City Real Property
Transfer Tax, New York State Stock Transfer Tax and any similar
Taxes imposed by any other city or State of the United States
(and any penalties and interest with respect to such Taxes), to
the extent any such Taxes are attributable to the transfer
of Contributed Assets and become payable in connection with the
transactions contemplated by this Agreement and the Merger
Agreement, on behalf of the Liberty Parties. Except as otherwise
required by law, the Liberty Parties shall not take a position
on any Tax Return that is inconsistent with the values and
allocations established by Holdco, UCTI or any Affiliates of
Holdco on any Tax Returns relating to such Taxes.
ARTICLE VI
CONDITIONS PRECEDENT
6.1 Conditions to Each Party's Obligation To Effect
Contribution. The respective obligation of each party to
consummate the Contribution is subject to the satisfaction or
waiver on or prior to the Closing Date of the following
conditions:
(a) Antitrust. The waiting periods (and any extensions
thereof) applicable to the transactions contemplated by this
Agreement under the HSR Act shall have been terminated or shall
have expired and the FTC shall have initially accepted the FTC
Consent Decree for public comment.
(b) No Injunctions or Restraints. No temporary
restraining order, preliminary or permanent injunction or other
order issued by any court of competent jurisdiction or other
legal restraint or prohibition preventing the consummation of
the Mergers, the Contribution or any other material transaction
contemplated by this Agreement or the Merger Agreement shall be
in effect; provided, however, that, subject to the proviso in
Section 5.4(a), each of the parties shall have used its
commercially reasonable efforts to prevent the entry of any such
injunction or other order and to appeal as promptly as possible,
any such injunction or other order that may be entered.
(c) Consummation of the Mergers. The Mergers shall be
consummated and become effective concurrently with the
consummation and effectiveness of the Contribution.
6.2 Conditions to Obligations of Holdco. The
obligation of Holdco to consummate the Contribution is further
subject to the satisfaction or waiver by Holdco on or prior to
the Closing Date of the following conditions:
(a) Representations and Warranties. The
representations and warranties of LMC Parent, TCITP and LBI set
forth in this Agreement that are qualified as to materiality
shall be true and correct, and the representations and
warranties of LMC Parent, TCITP and LBI set forth in this
Agreement that are not so qualified shall be true and correct in
all material respects, in each case as of the date of this
Agreement and as of the Closing Date as though made on and
as of the Closing Date, except to the extent any such
representation or warranty expressly relates to an earlier date
(in which case as of such date), and Holdco shall have received
a certificate to such effect signed on behalf of LMC Parent,
TCITP and LBI by the chief executive officer (or a senior vice
president) and the chief financial officer of LMC Parent.
(b) Performance of Obligations. LMC Parent, TCITP and
LBI shall have performed in all material respects all
obligations required to be performed by them under this
Agreement at or prior to the Closing Date, and Holdco shall have
received a certificate to such effect signed on behalf of LMC
Parent, TCITP and LBI by the chief executive officer (or a
senior vice president) and the chief financial officer of LMC
Parent.
(c) No Litigation. There shall not be pending any
suit, action or proceeding by any Governmental Entity (i)
seeking to restrain or prohibit the consummation of the
Contribution or any other transaction contemplated by this
Agreement or seeking to obtain from Holdco, TW Parent or any of
their subsidiaries any damages that are material in relation to
UCTI, (ii) seeking to prohibit or limit the ownership by Holdco
or any of its subsidiaries (including UCTI) of the Contributed
Assets or the ownership by Holdco or any of its subsidiaries
(including UCTI) of the TBS Shares, or seeking to compel Holdco
or any of its subsidiaries (including UCTI) to dispose of or
hold separate any material portion of the Contributed Assets or
the TBS Shares, (iii) seeking to impose limitations on the
ability of Holdco or any of its subsidiaries (including UCTI) to
acquire or hold, or exercise full rights of ownership of the
Contributed Assets or any TBS Shares, including the right to
vote or cause the vote of such TBS Shares on all matters
properly presented to the stockholders of TBS, or (iv) which
otherwise is reasonably likely to have a UCTI Material Adverse
Effect or a TW Material Adverse Effect.
6.3 Right of LMC Parent to Withdraw Contribution
Election. The obligations of LMC Parent, TCITP and LBI to
consummate the Contribution are further subject to the right of
LMC Parent to withdraw the Contribution Election at any time
prior to three business days prior to the Effective Time.
ARTICLE VII
TERMINATION, AMENDMENT AND WAIVER
7.1 Termination. This Agreement may be terminated at
any time prior to the Closing:
(a) by mutual written consent of TW Parent and LMC
Parent;
(b) by LMC Parent, at any time prior to three business
days prior to the Effective Time, by written notice to TW Parent
and Holdco; and
(c) by TW Parent:
(i) if the Merger Agreement has been terminated;
or
(ii) if the Mergers shall not have been
consummated on or before September 30, 1996, unless the
failure to consummate the Mergers is the result of a wilful
and material breach of this Agreement by TW Parent; or
(iii) if any condition set forth in Section 6.1
or Section 6.2, is not satisfied and not capable of being
satisfied prior to the end of the period referred to in
Section 7.1(c)(ii).
This Agreement will automatically terminate upon the
consummation of the TBS Merger, if no Contribution Election
shall theretofore have been timely made hereunder.
7.2 Effect of Termination. In the event of any
termination of this Agreement by either LMC Parent or TW Parent
as provided in Section 7.1, this Agreement shall forthwith
become void and have no effect, without any liability or
obligation on the part of TW Parent, LMC Parent, TCITP or LBI,
other than the provisions of Sections 4.1(g), 4.2(e), 5.3 and
5.6, this Section 7.2 and Article VIII and except to the extent
that such termination results from the wilful and material
breach by a party of any of its representations, warranties,
covenants or other agreements set forth in this Agreement. The
Termination of this Agreement shall not affect the
enforceability of, the obligations under or the terms of any
other agreements relating to or entered into in connection with
the Mergers.
7.3 Amendment. This Agreement may be amended by the
parties at any time, but only by an instrument in writing signed
on behalf of each of the parties.
7.4 Extension; Waiver. At any time prior to the
Effective Time, the parties may (a) extend the time for the
performance of any of the obligations or other acts of the other
parties, (b) waive any inaccuracies in the representations and
warranties contained in this Agreement or in any document
delivered pursuant to this Agreement or (c) waive compliance
with any of the agreements or conditions contained in this
Agreement. Any agreement on the part of a party to any such
extension or waiver shall be valid only if set forth in an
instrument in writing signed on behalf of such party. The
failure of any party to this Agreement to assert any of its
rights under this Agreement or otherwise shall not constitute a
waiver of such rights.
ARTICLE VIII
GENERAL PROVISIONS
8.1 Non-survival of Representations and Warranties.
Subject to the next sentence, none of the representations and
warranties in this Agreement or in any instrument delivered
pursuant to this Agreement shall survive the Effective Time.
Notwithstanding the previous sentence or any other provision of
this Agreement, the representation and warranty provided in
Section 4.1(j) shall survive the Effective Time and shall
continue in full force and effect indefinitely. This Section 8.1
shall not limit any covenant or agreement which by its terms
contemplates performance after the Effective Time (including
those set forth in Article III and Section 5.1(b)).
8.2 Notices. All notices, requests, claims, demands
and other communications under this Agreement shall be in
writing and shall be sufficient if delivered personally or sent
by overnight courier (providing proof of delivery) to the
parties at the following addresses (or at such other address,
for a party, as shall be specified by like notice):
(a) if to TW Parent or Holdco, to
Time Warner Inc.
75 Rockefeller Plaza
New York, New York 10019
Attention: President
with a copy similarly addressed
to the attention of General Counsel
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
New York, NY 10019
Attention: Richard Hall, Esq.
(b) to LMC Parent, TCITP or LBI, to
Liberty Media Corporation
Terrace Towers II
5619 DTC Parkway
Englewood, Colorado 80111-3000
Attention: President
with copies to:
Stephen M. Brett, Esq.
General Counsel
Tele-Communications, Inc.
Terrace Towers II
5619 DTC Parkway
Englewood, Colorado 80111-3000
and
Baker & Botts, L.L.P.
599 Lexington Avenue
New York, New York 10022
Attention: Elizabeth M. Markowski, Esq.
8.3 Descriptive Headings. The table of contents and
headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or
interpretation of this Agreement.
8.4 Counterparts. This Agreement may be executed in
two or more counterparts and on separate counterparts, each of
which shall be an original instrument and all of which together
shall constitute one and the same agreement.
8.5 Entire Agreement; No Third-Party Beneficiaries.
This Agreement and the Additional Agreements (including the
documents referred to herein and therein) (a) constitute the
entire agreement, and supersede all prior agreements and
understandings, both written and oral, among the parties with
respect to the subject matter of this Agreement and (b) except
for the provisions of Article III of this Agreement, are not
intended to confer upon any person other than the parties hereto
and thereto and, on and after the date of Spin-off, SpinCo, any
rights or remedies.
8.6 Governing Law. This Agreement shall be governed
by, and construed in accordance with, the laws of the State of
Delaware applicable to contracts among Delaware corporations
made and to be performed wholly in the State of Delaware, except
to the extent the laws of the State of Colorado are mandatorily
applicable.
8.7 Assignment. Neither this Agreement nor any of the
rights, interests or obligations under this Agreement shall be
assigned, in whole or in part, by operation of law or otherwise
by any of the parties without the prior written consent of the
other parties, except as provided in Section 2.6.
8.8 Enforcement. The parties agree that irreparable
damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their
specific terms or were otherwise breached. It is accordingly
agreed that the parties shall be entitled to seek an injunction
or injunctions to prevent breaches of this Agreement, and to
enforce specifically the terms and provisions of this Agreement
in any court of the United States located in the State of
Delaware or in Delaware state court (in addition to any other
remedy to which they are entitled at law or in equity). In
addition, each of the parties hereto (a) hereby consents and
submits itself to the personal jurisdiction of any Federal court
located in the State of Delaware or any Delaware state court in
the event any dispute arises out of this Agreement or any of the
transactions contemplated by this Agreement, (b) agrees that it
will not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court and (c)
agrees that it will not bring any action relating to this
Agreement or any of the transactions contemplated by this
Agreement in any court other than a Federal court sitting in the
State of Delaware or a Delaware state court.
8.9 Waivers. Except as provided in this Agreement or
any waiver pursuant to Section 7.4, no action taken pursuant to
this Agreement, including any investigation by or on behalf of
any party, shall be deemed to constitute a waiver by the party
taking such action of compliance with any representations,
warranties, covenants or agreements contained in this Agreement.
The waiver by any party hereto of a breach of any provision
hereunder shall not operate or be construed as a waiver of any
prior or subsequent breach of the same or any other provision
hereunder.
IN WITNESS WHEREOF, TW Parent, Holdco, TCITP and LBI
have caused this Agreement to be signed by their respective
officers thereunto duly authorized, all as of the date first
written above.
TIME WARNER INC.
By
Name:
Title:
TW INC.
By
Name:
Title:
TCI TURNER PREFERRED, INC.
By
Name:
Title:
LIBERTY MEDIA CORPORATION
By
Name:
Title:
LIBERTY BROADCASTING, INC.
By
Name:
Title:
Acknowledged and agreed by
TELE-COMMUNICATIONS, INC.
(for purposes of Section 3.1(a) only)
By
Name:
Title:
The undersigned hereby agree to the amendment of the
LMC Agreement as provided in Section 3.6, above.
TIME WARNER INC. TCI TURNER PREFERRED, INC.
By: By:
Name: Name:
Title: Title:
TW INC. COMMUNICATION CAPITAL CORP.
By: By:
Name: Name:
Title: Title:
LIBERTY MEDIA CORPORATION UNITED CABLE TURNER INVESTMENT INC.
By: By:
Name: Name:
Title: Title:
To the extent necessary to approve the amendment, only
TELE-COMMUNICATIONS, INC.
By:
Name:
Title:
To be executed on and as of the date of the Spin-off, as
provided in Section 2.6:
SOUTHERN SATELLITE SYSTEMS, INC.
By:
Name:
Title: