EXHIBIT A TO
SECOND AMENDED AND RESTATED
LMC AGREEMENT
CERTIFICATE OF THE VOTING POWERS, DESIGNATIONS, PREFERENCES
AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL
RIGHTS, AND QUALIFICATIONS, LIMITATIONS
OR RESTRICTIONS THEREOF, OF
SERIES LMCN-V COMMON STOCK
OF
TW INC.
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Pursuant to Section 151 of the General Corporation Law
of the State of Delaware
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TW INC., a corporation organized and existing by
virtue of the General Corporation Law of the State of Delaware
(the "Corporation"), does hereby certify that the following
resolution was duly adopted by action of the Board of Directors
of the Corporation (the "Board of Directors") at a meeting duly
held on [ ], 1996.
RESOLVED that pursuant to the authority expressly
granted to and vested in the Board of Directors by the
provisions of Section 3 of Article IV of the Restated
Certificate of Incorporation of the Corporation (the
"Certificate of Incorporation") and Section 151(g) of the
General Corporation Law of the State of Delaware (the "DGCL"),
the Board of Directors hereby creates, from the authorized
shares of Series Common Stock, par value $.01 per share (the
"Series Common Stock"), of the Corporation authorized to be
issued pursuant to the Certificate of Incorporation, a series
of Series Common Stock, and hereby fixes the voting powers,
designations, preferences and relative, participating, optional
or other special rights, and qualifications, limitations or
restrictions thereof, of the shares of such series as follows:
The series of Series Common Stock hereby established
shall consist of [ ] shares designated as Series LMCN-V Common
Stock. The number of shares constituting such series may be
increased or decreased (but not below the number of shares then
outstanding) from time
to time by a resolution or resolutions of the Board of
Directors. The terms of such series shall be as follows:
1. Definitions. As used herein, the following terms
shall have the indicated meanings:
1.1 "Board of Directors" shall mean the Board of
Directors of the Corporation or, with respect to any action to
be taken by the Board of Directors, any committee of the
Board of Directors duly authorized to take such action.
1.2 "Capital Stock" shall mean any and all
shares of corporate stock of a Person (however designated and
whether representing rights to vote, rights to participate in
dividends or distributions upon liquidation or otherwise with
respect to such Person, or any division or subsidiary thereof,
or any joint venture, partnership, corporation or other
entity).
1.3 "Certificate" shall mean the Certificate of
the Voting Powers, Designations, Preferences and Relative,
Participating, Optional or Other Special Rights, and
Qualifications, Limitations or Restrictions Thereof, of Series
LMCN-V Common Stock filed with the Secretary of State of the
State of Delaware pursuant to Section 151 of the DGCL.
1.4 "Closing Price" of the Common Stock shall
mean the last reported sale price of the Common Stock (regular
way) as shown on the Composite Tape of the NYSE, or, in case no
such sale takes place on such day, the average of the closing
bid and asked prices on the NYSE, or, if the Common Stock is
not listed or admitted to trading on the NYSE, on the principal
national securities exchange on which such stock is listed or
admitted to trading, or, if it is not listed or admitted to
trading on any national securities exchange, the last
reported sale price of the Common Stock, or, in case no such
sale takes place on such day, the average of the closing bid
and asked prices, in either case as reported by NASDAQ.
1.5 "Common Stock" shall mean the class of
Common Stock, par value $.01 per share, of the Corporation
authorized at the date of the Certificate, or any other class
of stock resulting from (x) successive changes or
reclassifications of such Common Stock consisting of changes in
par value, or from par value to no par value, (y) a sub-
division or combination or (z) any other changes for which an
adjustment is made under Section 2.4(a), and in any such case
including any shares thereof authorized after the date of the
Certificate, together with any rights associated generally with
the shares of Common Stock.
1.6 "Communications Laws" shall mean 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 Federal Communications Commission (the "FCC"). All
references herein to 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 or promulgated with a
delayed effective date).
1.7 "Conversion Date" shall have the meaning set
forth in Section 3.5.
1.8 "Corporation" shall mean TW Inc., a Delaware
corporation, and any of its successors by operation of law,
including by merger or consolidation.
1.9 "DGCL" shall mean the General Corporation
Law of the State of Delaware, as amended from time to time.
1.10 "Dividend Payment Date" shall have the
meaning set forth in Section 2.1.
1.11 "Formula Number" shall have the meaning set
forth in Section 2.1.
1.12 "LMC Agreement" shall mean the Second
Amended and Restated LMC Agreement dated as of September 22,
1995, among a Delaware corporation known on such date as "Time
Warner Inc.", the Corporation, Liberty Media Corporation, a
Delaware corporation ("LMC Parent"), and certain subsidiaries
of LMC Parent listed under "Subsidiaries of LMC Parent" on the
signature pages thereto, as amended from time to time.
1.13 "NASDAQ" shall mean The Nasdaq Stock
Market.
1.14 "NYSE" shall mean the New York Stock
Exchange, Inc.
1.15 "Parity Stock" shall mean shares of Common
Stock and shares of any other class or series of Capital Stock
of the Corporation that, by the terms of the Certificate of
Incorporation or of the instrument by which the Board of
Directors, acting pursuant to authority granted in the
Certificate of Incorporation, shall fix the relative rights,
preferences and limitations thereof, shall, in the event that
the stated dividends thereon are not paid in full, be entitled
to share ratably with the shares of this Series in the payment
of dividends in accordance with the sums that would be payable
on such shares if all dividends were declared and paid in full,
or shall, in the event that the amounts payable thereon in
liquidation are not paid in full, be entitled to share ratably
with the shares of this Series in any distribution of assets
other than by way of dividends in accordance with the sums that
would be payable in such distribution if all sums payable were
discharged in full.
1.16 "Permitted Transferee" shall mean any
Liberty Party or any SpinCo Party, as such terms are defined in
the LMC Agreement.
1.17 "Person" shall mean an individual,
corporation, partnership, limited liability company, joint
venture, association, trust, unincorporated organization or
other entity.
1.18 "Preferred Stock" shall mean the class of
Preferred Stock, par value $.10 per share, of the Corporation
authorized at the date of the Certificate, including any shares
thereof authorized after the date of the Certificate.
1.19 "Record Date" shall have the meaning set
forth in Section 2.1.
1.20 "Senior Stock" shall mean shares of any
class or series of Capital Stock of the Corporation that, by
the terms of the Certificate of Incorporation or of the
instrument by which the Board of Directors, acting pursuant to
authority granted in the Certificate of Incorporation, shall
fix the relative rights, preferences and limitations thereof,
shall be senior to the shares of this Series in respect of the
right to receive dividends or to participate
in any distribution of assets other than by way of dividends.
1.21 "Series Common Stock" shall mean the class
of Series Common Stock, par value $.01 per share, of the
Corporation authorized at the date of the Certificate,
including any shares thereof authorized after the date of the
Certificate.
1.22 "Series LMC Common Stock" shall mean the
series of Series Common Stock authorized and designated as
Series LMC Common Stock at the date of the Certificate,
including any shares thereof authorized and designated after
the date of the Certificate.
1.23 "Series LMCN-V Common Stock" and "this
Series" shall mean the series of Series Common Stock authorized
and designated as Series LMCN-V Common Stock at the date of the
Certificate, including any shares thereof authorized and
designated after the date of the Certificate.
1.24 "Trading Day" shall mean, so long as the
Common Stock is listed or admitted to trading on the NYSE, a
day on which the NYSE is open for the transaction of business,
or, if the Common Stock is not listed or admitted to trading on
the NYSE, a day on which the principal national securities
exchange on which the Common Stock is listed is open for the
transaction of business, or, if the Common Stock is not so
listed or admitted for trading on any national securities
exchange, a day on which the National Market System of NASDAQ
is open for the transaction of business.
2. Dividends.
2.1 The holders of shares of this Series shall
be entitled to receive dividends, out of funds legally
available therefor, payable on such dates as may be set by the
Board of Directors for payment of cash dividends on the Common
Stock (each such date being referred to herein as a "Dividend
Payment Date"), in cash, in an amount per share equal to the
product of (i) the Formula Number in effect as of such
Dividend Payment Date multiplied by (ii) the amount of the
regularly scheduled cash dividend to be paid on one share of
Common Stock on such Dividend Payment Date; provided, however,
dividends on the shares of this Series
shall be payable pursuant to this Section 2.1 only to the
extent that regularly scheduled cash dividends are declared
and paid on the Common Stock. As used herein, the "Formula
Number" shall initially be 1.0000, which shall be adjusted
from time to time pursuant to Section 2.4. The dividends
payable on any Dividend Payment Date shall be paid to the
holders of record of shares of this Series at the close of
business on the record date for the related regularly
scheduled cash dividend on the Common Stock (each such date
being referred to herein as a "Record Date"). The amount of
dividends that are paid to each holder of record on any
Dividend Payment Date shall be rounded to the nearest cent.
2.2 In case the Corporation shall at any time
distribute (other than a distribution in liquidation of the
Corporation and other than a distribution of Common Stock as a
result of which an adjustment to the Formula Number is made
pursuant to Section 2.4) to the holders of its shares of
Common Stock any assets or property, including evidences of
indebtedness or securities of the Corporation or of any other
Person (including common stock of such Person) or cash (but
excluding regularly scheduled cash dividends payable on shares
of Common Stock), or in case the Corporation shall at any time
distribute (other than a distribution in liquidation of the
Corporation) to such holders rights, options or warrants to
subscribe for or purchase shares of Common Stock (including
shares held in the treasury of the Corporation), or rights,
options or warrants to subscribe for or purchase any other
security or rights, options or warrants to subscribe for or
purchase any assets or property (in each case, whether of the
Corporation or otherwise, but other than any distribution of
rights to purchase securities of the Corporation if the holder
of shares of this Series would otherwise be entitled to
receive such rights upon conversion of shares of this Series
for Common Stock pursuant to Section 3, provided, however,
that if such rights are subsequently redeemed by the
Corporation, such redemption shall be treated for purposes of
this Section 2.2 as a cash dividend (but not a regularly
scheduled cash dividend) on the Common Stock), the Corporation
shall simultaneously distribute such assets, property,
securities, rights, options or warrants to the holders of
shares of this Series on the record date fixed for determining
the holders of Common Stock entitled to participate in such
distribution (or, if no such record date shall be established,
the effective time thereof) in an amount per share of this
Series equal to the amount that a holder of one share of this
Series would have been entitled
to receive had such share of this Series been converted into
Common Stock immediately prior to such record date (or
effective time). In the event of a distribution to holders of
shares of this Series pursuant to this Section 2.2, such
holders shall be entitled to receive fractional shares or
interests only to the extent that holders of Common Stock are
entitled to receive the same. The holders of shares of this
Series on the applicable record date (or effective time) shall
be entitled to receive in lieu of such fractional shares or
interests the same consideration as is payable to holders of
Common Stock with respect thereto. If there are no fractional
shares or interests payable to holders of Common Stock, the
holders of shares of this Series on the applicable record date
(or effective time) shall receive in lieu of such fractional
shares or interests the fair value thereof as determined by
the Board of Directors.
2.3 In the event that the holders of Common
Stock are entitled to make any election with respect to the
kind or amount of securities or other property receivable by
them in any distribution that is subject to Section 2.2, the
kind and amount of securities or other property that shall be
distributable to the holders of shares of this Series shall be
based on (i) the election, if any, made by the holder of
record (as of the date used for determining the holders of
Common Stock entitled to make such election) of the largest
number of shares of this Series in writing to the Corporation
on or prior to the last date on which a holder of Common Stock
may make such an election or (ii) if no such election is
timely made, an assumption that such holder failed to exercise
any such rights (provided that if the kind or amount of
securities or other property is not the same for each
nonelecting holder, then the kind and amount of securities or
other property receivable by holders of shares of this Series
shall be based on the kind or amount of securities or other
property receivable by a plurality of the shares held by the
nonelecting holders of Common Stock). Concurrently with the
mailing to holders of Common Stock of any document pursuant to
which such holders may make an election of the type referred
to in this Section 2.3, the Corporation shall mail a copy
thereof to the holders of record of shares of this Series as
of the date used for determining the holders of record of
Common Stock entitled to such mailing, which document shall be
used by the holders of record of shares of this Series to make
such an election.
2.4 The Formula Number shall be adjusted from
time to time as follows, whether or not any shares of this
Series have been issued by the Corporation, for events
occurring on or after [ ]:<F1>
(a) In case the Corporation shall (i) pay a
dividend in shares of its Common Stock, (ii) combine
its outstanding shares of Common Stock into a
smaller number of shares, (iii) subdivide its
outstanding shares of Common Stock or (iv)
reclassify (other than by way of a merger or
consolidation that is subject to Section 3.6) its
shares of Common Stock, then the Formula Number in
effect immediately before such event shall be
appropriately adjusted so that immediately following
such event the holders of shares of this Series
shall be entitled to receive upon conversion thereof
the kind and amount of shares of Capital Stock of
the Corporation that they would have owned or been
entitled to receive upon or by reason of such event
if such shares of this Series had been converted
immediately before the record date (or, if no record
date, the effective date) for such event (it being
understood that any distribution of cash or Capital
Stock (other than Common Stock) that shall accompany
a reclassification of the Common Stock, shall be
subject to Section 2.2 rather than this Section
2.4(a)). An adjustment made pursuant to this Section
2.4(a) shall become effective retroactively
immediately after the record date in the case of a
dividend or distribution and shall become effective
retroactively immediately after the effective date
in the case of a subdivision, combination or
reclassification. For the purposes of this Section
2.4(a), in the event that the holders of Common
Stock are entitled to make any election with respect
to the kind or amount of securities receivable by
them in any transaction that is subject to this
Section 2.4(a) (including any election that would
result in all or a portion of the transaction
becoming subject to Section 2.2), the kind and
amount of securities that shall be distributable to
the holders of shares of this Series shall be based
on (i) the election, if any, made by the holder of
record (as of
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[FN]
<F1> Insert the earliest of (x) the date of filing of the
Certificate, (y) the date of filing of the certificate for the
Series LMC Common Stock or (z) the closing of the Mergers.
the date used for determining the holders of Common
Stock entitled to make such election) of the largest
number of shares of this Series in writing to the
Corporation on or prior to the last date on which a
holder of Common Stock may make such an election or
(ii) if no such election is timely made, an
assumption that such holder failed to exercise any
such rights (provided that if the kind or amount of
securities is not the same for each nonelecting
holder, then the kind and amount of securities
receivable shall be based on the kind or amount of
securities receivable by a plurality of nonelecting
holders of Common Stock). Concurrently with the
mailing to holders of Common Stock of any document
pursuant to which such holders may make an election
of the type referred to in this Section 2.4(a), the
Corporation shall mail a copy thereof to the holders
of record of shares of this Series as of the date
used for determining the holders of record of Common
Stock entitled to such mailing, which document shall
be used by the holders of record of shares of this
Series to make such an election.
(b) The Corporation shall be entitled to make
such additional adjustments in the Formula Number,
in addition to those required by Section 2.4(a) as
shall be necessary in order that any dividend or
distribution in Common Stock or any subdivision,
reclassification or combination of shares of Common
Stock referred to above, shall not be taxable to the
holders of Common Stock for United States Federal
income tax purposes, so long as such additional
adjustments pursuant to this Section 2.4(b) do not
decrease the Formula Number.
(c) All calculations under this Section 2 and
Section 3 shall be made to the nearest cent, one-
hundredth of a share or, in the case of the Formula
Number, one hundred-thousandth. Notwithstanding any
other provision of this Section 2.4, the Corporation
shall not be required to make any adjustment of the
Formula Number unless such adjustment would require
an increase or decrease of at least one percent (1%)
of the Formula Number. Any lesser adjustment shall
be carried forward and shall be made at the time of
and together with the next subsequent adjustment
that, together with any adjustment or adjustments so
carried forward, shall amount to an increase or
decrease of at least one percent (1%) of the Formula
Number. Any
adjustments under this Section 2.4 shall be made
successively whenever an event requiring such an
adjustment occurs.
(d) Promptly after an adjustment in the Formula
Number is required, the Corporation shall provide
written notice to each of the holders of shares of
this Series, which notice shall state the adjusted
Formula Number.
(e) If a distribution is made in accordance
with the provisions of Section 2.2, anything in this
Section 2.4 to the contrary notwithstanding, no
adjustment pursuant to this Section 2.4 shall be
effected by reason of the distribution of such
assets, property, securities, rights, options or
warrants or the subsequent modification, exercise,
expiration or termination of such securities,
rights, options or warrants.
3. Conversion at the Option of the Holder.
3.1 Each holder of a share of this Series shall
have the right at any time to convert such share of this
Series into either: (i) a number of shares of Common Stock per
share of this Series equal to the Formula Number in effect on
the Conversion Date or (ii) one share of Series LMC Common
Stock per share of this Series; provided, however, that such
holder may convert shares of this Series only to the extent
that the ownership by such holder or its designee of the
shares of Common Stock or Series LMC Common Stock issuable
upon such conversion would not violate the Communications
Laws.
3.2 No adjustments in respect of payments of
dividends on shares of this Series surrendered for conversion
or any dividend on the Common Stock or Series LMC Common Stock
issued upon conversion shall be made upon the conversion of
any shares of this Series (it being understood that if the
Conversion Date for shares of this Series occurs after the
Record Date and prior to the Dividend Payment Date of any such
dividend, the holders of record of shares of this Series on
such Record Date shall be entitled to receive the dividend
payable with respect to such shares on the related Dividend
Payment Date pursuant to Section 2.1).
3.3 The Corporation may, but shall not be
required to, in connection with any conversion of shares of
this Series into shares of Common Stock, issue a fraction of a
share of Common Stock, and if the Corporation shall determine
not to issue any such fraction, the Corporation shall make a
cash payment (rounded to the nearest cent) equal to such
fraction multiplied by the Closing Price of the Common Stock
on the last Trading Day prior to the Conversion Date. The
Corporation shall issue a fraction of a share of Series LMC
Common Stock in order to effect a conversion of a fraction of
a share of this Series into Series LMC Common Stock.
3.4 Any holder of shares of this Series
electing to convert such shares into Common Stock or Series
LMC Common Stock shall surrender the certificate or
certificates for such shares at the principal executive office
of the Corporation (or at such other place as the Corporation
may designate by notice to the holders of shares of this
Series) during regular business hours, duly endorsed to the
Corporation or in blank, or accompanied by instruments of
transfer to the Corporation or in blank, or in form
satisfactory to the Corporation, and shall give written notice
to the Corporation at such office that such holder elects to
convert such shares of this Series, which notice shall state
whether the shares of this Series delivered for conversion
shall be converted into shares of Common Stock or shares of
Series LMC Common Stock. If any such certificate or
certificates shall have been lost, stolen or destroyed, the
holder shall, in lieu of delivering such certificate or
certificates, deliver to the Corporation (or such other place)
an indemnification agreement and bond satisfactory to the
Corporation. The Corporation shall, as soon as practicable
(subject to Section 3.8) after such deposit of certificates
for shares of this Series or delivery of the indemnification
agreement and bond, accompanied by the written notice above
prescribed, issue and deliver at such office (or such other
place) to the holder for whose account such shares were
surrendered, or a designee of such holder, certificates
representing either (i) the number of shares of Common Stock
and the cash, if any, or (ii) the number of shares of Series
LMC Common Stock, as the case may be, to which such holder is
entitled upon such conversion. Each share of Common Stock
delivered to a holder or its designee as a result of
conversion of shares of this Series pursuant to this Section 3
shall be accompanied by any rights associated generally with
each
other share of Common Stock outstanding as of the Conversion
Date.
3.5 Conversion shall be deemed to have been
made as of the date (the "Conversion Date") that the
certificate or certificates for the shares of this Series to
be converted and the written notice prescribed in Section 3.4
are received by the Corporation; and the Person entitled to
receive the Common Stock or Series LMC Common Stock issuable
upon such conversion shall be treated for all purposes as the
holder of record of such Common Stock or Series LMC Common
Stock, as the case may be, on such date. The Corporation shall
not be required to deliver certificates for shares of Common
Stock or Series LMC Common Stock while the stock transfer
books for such stock or for this Series are duly closed for
any purpose, but certificates for shares of Common Stock or
Series LMC Common Stock, as the case may be, shall be
delivered as soon as practicable after the opening of such
books.
3.6 In the event that on or after [ ]<F2>, whether
or not any shares of this Series have been issued by the
Corporation, either (a) any consolidation or merger to which
the Corporation is a party, other than a merger or
consolidation in which the Corporation is the surviving or
continuing corporation and that does not result in any
reclassification of, or change (other than a change in par
value or from par value to no par value or from no par value
to par value, or as a result of a subdivision or combination)
in, outstanding shares of Common Stock or (b) any sale or
conveyance of all or substantially all of the property and
assets of the Corporation, then lawful provision shall be made
as part of the terms of such transaction whereby the holder of
each share of this Series shall have the right thereafter,
during the period such share shall be convertible, to convert
such share into the kind and amount of shares of stock or
other securities and property receivable upon such
consolidation, merger, sale or conveyance by a holder of the
number of shares of Common Stock into which such shares of
this Series could have been converted immediately prior to
such consolidation, merger, sale or conveyance, subject to
adjustment that shall
[FN]
<F2> Insert the earliest of (x) the date of filing of the
Certificate, (y) the date of filing of the certificate for the
Series LMC Common Stock or (z) the closing of the Mergers.
be as nearly equivalent as may be practicable to the
adjustments provided for in Section 2.4 and this Section 3
(based on (i) the election, if any, made in writing to the
Corporation by the holder of record (as of the date used for
determining holders of Common Stock entitled to make such
election) of the largest number of shares of this Series on or
prior to the last date on which a holder of Common Stock may
make an election regarding the kind or amount of securities or
other property receivable by such holder in such transaction
or (ii) if no such election is timely made, an assumption that
such holder failed to exercise any such rights (provided that
if the kind or amount of securities or other property is not
the same for each nonelecting holder, then the kind and amount
of securities or other property receivable shall be based upon
the kind and amount of securities or other property receivable
by a plurality of the nonelecting holders of Common Stock)).
In the event that any of the transactions referred to in
clause (a) or (b) of the first sentence of this Section 3.6
involves the distribution of cash or property (other than
equity securities) to a holder of Common Stock, lawful
provision shall be made as part of the terms of the
transaction whereby the holder of each share of this Series on
the record date fixed for determining holders of Common Stock
entitled to receive such cash or property (or if no such
record date is established, the effective date of such
transaction) shall be entitled to receive the amount of cash
or property that such holder would have been entitled to
receive had such holder converted his shares of this Series
into Common Stock immediately prior to such record date (or
effective date) (based on the election or nonelection made by
the holder of record of the largest number of shares of this
Series, as provided above). Concurrently with the mailing to
holders of Common Stock of any document pursuant to which such
holders may make an election regarding the kind or amount of
securities or other property that will be receivable by such
holders in any transaction described in clause (a) or (b) of
the first sentence of this Section 3.6, the Corporation shall
mail a copy thereof to the holders of record of the shares of
this Series as of the date used for determining the holders of
record of Common Stock entitled to such mailing, which
document shall be used by the holders of shares of this Series
to make such an election. The Corporation shall not enter into
any of the transactions referred to in clause (a) or (b) of
the first sentence of this Section 3.6 unless effective
provision shall be made in the certificate or articles of
incorporation or other constituent documents of the
Corporation or the entity
surviving the consolidation or merger, if other than the
Corporation, or the entity acquiring the Corporation's assets,
as the case may be, so as to give effect to the provisions set
forth in this Section 3.6. The provisions of this Section 3.6
shall apply similarly to successive consolidations, mergers,
sales or conveyances. For purposes of this Section 3.6, the
term "Corporation" shall refer to the Corporation as
constituted immediately prior to the merger, consolidation or
other transaction referred to in this Section 3.6.
3.7 The Corporation shall at all times reserve
and keep available, free from preemptive rights, out of its
authorized but unissued stock, for the purpose of effecting
the conversion of the shares of this Series, such number of
its duly authorized shares of Common Stock and Series LMC
Common Stock as shall from time to time be sufficient to
effect the conversion of all outstanding shares of this Series
into shares of Common Stock or Series LMC Common Stock at any
time (assuming that, at the time of the computation of such
number of shares, all such Common Stock or Series LMC Common
Stock would be held by a single holder); provided, however,
that nothing contained herein shall preclude the Corporation
from satisfying its obligations in respect of the conversion
of the shares by delivery of purchased shares of Common Stock
or Series LMC Common Stock that are held in the treasury of
the Corporation. All shares of Common Stock or Series LMC
Common Stock that shall be deliverable upon conversion of the
shares of this Series shall be duly and validly issued, fully
paid and nonassessable. For purposes of this Section 3, any
shares of this Series at any time outstanding shall not
include shares held in the treasury of the Corporation.
3.8 In any case in which Section 2.4 shall
require that any adjustment be made effective as of or
retroactively immediately following a record date, the
Corporation may elect to defer (but only for five (5) Trad-
ing Days following the occurrence of the event that
necessitates the notice referred to in Section 2.4(d)) issuing
to the holder of any shares of this Series converted after
such record date (i) the shares of Common Stock issuable
upon such conversion over and above (ii) the shares of Common
Stock issuable upon such conversion on the basis of the
Formula Number prior to adjustment; provided, however, that
the Corporation shall deliver to such holder a due bill or
other appropriate instrument evidencing such holder's
right to receive such additional shares upon the occurrence of
the event requiring such adjustment.
3.9 If any shares of Common Stock or Series LMC
Common Stock that would be issuable upon conversion pursuant
to this Section 3 require registration with or approval of any
governmental authority before such shares may be issued upon
conversion (other than any such registration or approval
required to avoid a violation of the Communications Laws), the
Corporation will in good faith and as expeditiously as
possible cause such shares to be duly registered or approved,
as the case may be. The Corporation will use commercially
reasonable efforts to list the shares of (or depositary shares
representing fractional interests in) Common Stock required to
be delivered upon conversion of shares of this Series prior to
such delivery upon the principal national securities exchange,
if any, upon which the outstanding Common Stock is listed at
the time of such delivery.
3.10 The Corporation shall pay any and all
issue or other taxes that may be payable in respect of any
issue or delivery of shares of Common Stock or Series LMC
Common Stock on conversion of shares of this Series pursuant
hereto. The Corporation shall not, however, be required to pay
any tax that is payable in respect of any transfer involved in
the issue or delivery of Common Stock or Series LMC Common
Stock in a name other than that in which the shares of this
Series so converted were registered, and no such issue or
delivery shall be made unless and until the Person requesting
such issue has paid to the Corporation the amount of such tax,
or has established, to the satisfaction of the Corporation,
that such tax has been paid.
3.11 In case of (i) the voluntary or
involuntary dissolution, liquidation or winding up of the
Corporation or (ii) any action triggering an adjustment to the
Formula Number pursuant to Section 2.4 or Section 3.6, then,
in each case, the Corporation shall cause to be mailed,
first-class postage prepaid, to the holders of record of the
outstanding shares of this Series, at least fifteen (15) days
prior to the applicable record date for any such transaction
(or if no record date will be established, the effective date
thereof), a notice stating (x) the date, if any, on which a
record is to be taken for the purpose of any such transaction
(or, if no record date will be established, the date as of
which holders of record of Common Stock entitled to
participate in such transaction
are determined), and (y) the expected effective date thereof.
Failure to give such notice or any defect therein shall not
affect the legality or validity of the proceedings described
in this Section 3.11.
4. Voting.
4.1 The shares of this Series shall have no
voting rights except as expressly provided in this Section 4
or as required by law.
4.2 Each share of this Series shall be entitled
to vote together as one class with the holders of shares of
Common Stock upon the election of the directors of the
Corporation. In any such vote, the holders of shares of this
Series shall be entitled to a number of votes per share of
this Series equal to the product of (i) the Formula Number
then in effect multiplied by (ii) the maximum number of votes
per share of Common Stock that any holder of shares of Common
Stock generally then has with respect to such matter divided
by (iii) 100.
4.3 So long as any shares of this Series remain
outstanding, unless a greater percentage shall then be
required by law, the Corporation shall not, without the
affirmative vote of the holders of shares of this Series
representing at least 66-2/3% of the aggregate voting power of
shares of this Series then outstanding, amend, alter or repeal
any of the provisions of the Certificate or the Certificate of
Incorporation so as, in any such case, as applicable, to (i)
amend, alter or repeal any of the powers, preferences or
rights of the Series Common Stock or (ii) adversely affect the
voting powers, designations, preferences and relative,
participating, optional or other special rights, and
qualifications, limitations or restrictions thereof, of the
shares of this Series or the Series LMC Common Stock;
provided, however, that no affirmative vote of any shares of
this Series shall be required to amend, alter or repeal any of
the powers, preferences or rights of any series of Series
Common Stock other than this Series and the Series LMC Common
Stock.
4.4 So long as any shares of this Series remain
outstanding, the Corporation shall not, without the
affirmative vote of the holders of shares of this Series
representing 100% of the aggregate voting power of shares of
this Series then outstanding, amend, alter or repeal the
provisions of Section 7.7.
4.5 No consent of holders of shares of this
Series shall be required for (i) the creation of any indebt-
edness of any kind of the Corporation, (ii) the authorization
or issuance of any class or series of Parity Stock or Senior
Stock, (iii) the approval of any amendment to the Certificate
of Incorporation that would increase or decrease the aggregate
number of authorized shares of Series Common Stock or Common
Stock or (iv) the authorization of any increase or decrease in
the number of shares constituting this Series; provided,
however, that the number of shares constituting this Series
shall not be decreased below the number of such shares then
outstanding.
5. Liquidation Rights.
5.1 Upon the liquidation, dissolution or
winding up of the Corporation, whether voluntary or
involuntary, the holders of shares of this Series shall be
entitled to receive, contemporaneously with any distribution
to holders of shares of Common Stock upon such liquidation,
dissolution or winding up, an aggregate amount per share equal
to the product of the Formula Number then in effect multiplied
by the aggregate amount to be distributed per share to holders
of Common Stock.
5.2 Neither the sale, exchange or other
conveyance (for cash, shares of stock, securities or other
consideration) of all or substantially all the property and
assets of the Corporation nor the merger or consolidation of
the Corporation into or with any other corporation, or the
merger or consolidation of any other corporation into or with
the Corporation, shall be deemed to be a dissolution,
liquidation or winding up, voluntary or involuntary, for the
purposes of this Section 5.
6. Transfer Restrictions.
6.1 Without the prior written consent of the
Corporation, no holder of shares of this Series shall offer,
sell, transfer, pledge, encumber or otherwise dispose of, or
agree to offer, sell, transfer, pledge, encumber or otherwise
dispose of, any shares of this Series or interests in any
shares of this Series except to a Permitted
Transferee that shall agree that, prior to such Permitted
Transferee ceasing to be a Permitted Transferee, such
Permitted Transferee must transfer ownership of any shares of
this Series, and all interests therein, held by such Permitted
Transferee to any Permitted Transferee. For the avoidance of
doubt, the preceding sentence is not intended to prohibit a
holder of shares of this Series from entering into, or
offering to enter into, (a) any arrangement under which such
holder agrees to promptly convert shares of this Series and
sell, transfer or otherwise dispose of the Common Stock
issuable upon such conversion or (b) any pledge or encumbrance
of shares of this Series; provided, however, that the terms of
any such pledge or encumbrance must require that, in the event
of any sale or foreclosure with respect to shares of this
Series, such shares must be delivered immediately to the
Corporation for conversion into Common Stock. The provisions
of this Section 6.1 shall continue to be in effect with
respect to any shares of this Series received by any holder by
virtue of merger, consolidation, operation of law or
otherwise.
6.2 Certificates for shares of this Series
shall bear such legends as the Corporation shall from time to
time deem appropriate.
7. Other Provisions.
7.1 All notices from the Corporation to the
holders of shares of this Series shall be given by one of the
methods specified in Section 7.2. With respect to any notice
to a holder of shares of this Series required to be provided
hereunder, neither failure to give such notice, nor any defect
therein or in the transmission thereof, to any particular
holder shall affect the sufficiency of the notice or the
validity of the proceedings referred to in such notice with
respect to the other holders or affect the legality or
validity of any distribution, right, warrant,
reclassification, consolidation, merger, conveyance, trans-
fer, dissolution, liquidation or winding up, or the vote upon
any such action. Any notice that was mailed in the manner
herein provided shall be conclusively presumed to have been
duly given whether or not the holder receives the notice.
7.2 All notices and other communications
hereunder shall be deemed given (i) on the first Trading Day
following the date received, if delivered personally,
(ii) on the Trading Day following timely deposit with an
overnight courier service, if sent by overnight courier
specifying next day delivery and (iii) on the first Trading
Day that is at least five days following deposit in the mails,
if sent by first class mail to (x) a holder at its last
address as it appears on the transfer records or registry for
the shares of this Series and (y) the Corporation at the
following address (or at such other address as the Corporation
shall specify in a notice pursuant to this Section 7.2): TW
Inc., 75 Rockefeller Plaza, New York, New York 10019,
Attention: General Counsel.
7.3 Any shares of this Series that have been
converted or otherwise acquired by the Corporation shall,
after such conversion or acquisition, as the case may be, be
retired and promptly cancelled and shall become authorized but
unissued shares of this Series, unless the Board of Directors
determines otherwise.
7.4 The Corporation shall be entitled to
recognize the exclusive right of a Person registered on its
records as the holder of shares of this Series, and such
holder of record shall be deemed the holder of such shares for
all purposes.
7.5 All notice periods referred to in the
Certificate shall commence on the date of the mailing of the
applicable notice.
7.6 Any registered holder of shares of this
Series may proceed to protect and enforce its rights by any
available remedy by proceeding at law or in equity to protect
and enforce any such rights, whether for the specific
enforcement of any provision in the Certificate or in aid of
the exercise of any power granted herein, or to enforce any
other proper remedy.
7.7 The shares of this Series shall not be
subject to redemption at the option of the Corporation,
including pursuant to Section 5 of Article IV of the
Certificate of Incorporation (or any equivalent provision in
any further amendment to or restatement of the Certificate of
Incorporation).
IN WITNESS WHEREOF, TW Inc. has caused this
certificate to be signed and attested this [ ] day of [ ],
1996.
TW INC.,
by
Name:
Title: