EXHIBIT C 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 LMC 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 LMC 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 LMC 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
subdivision 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" and "this Series" 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" 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 [ ]:1/
(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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1/ Insert the earliest of (x) the date of filing of the Certificate,
(y) the date of filing of the certificate for the Series LMCN-V 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 LMCN-V 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 LMCN-V 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 LMCN-V 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 LMCN-V Common
Stock in order to effect a conversion of a fraction of a share of this
Series into Series LMCN-V Common Stock.
3.4 Any holder of shares of this Series electing to
convert such shares into Common Stock or Series LMCN-V 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 LMCN-V
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 LMCN-V 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 LMCN-V Common
Stock issuable upon such conversion shall be treated for all purposes as
the holder of record of such Common Stock or Series LMCN-V 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 LMCN-V
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 LMCN-V 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 [ ]2/, 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
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2/ Insert the earliest of (x) the date of filing of the Certificate, (y)
the date of filing of the certificate for the Series LMCN-V 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 LMCN-V 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 LMCN-V Common Stock at any
time (assuming that, at the time of the computation of such number of
shares, all such Common Stock or Series LMCN-V 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 LMCN-V Common Stock that are held in the
treasury of the Corporation. All shares of Common Stock or Series LMCN-V
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) Trading 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 LMCN-V 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 LMCN-V 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 LMCN-V
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 Except as otherwise required by law, each share of
this Series shall be entitled to vote together as one class with the
holders of shares of Common Stock upon all matters upon which the
holders of shares of Common Stock are entitled to vote. 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.
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 LMCN-V 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 LMCN-V 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 indebtedness 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, transfer, 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: