Exhibit 3.(i)(i)
CERTIFICATE OF AMENDMENT
OF 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
OF
TIME WARNER INC.
--------------------
Pursuant to Section 242 of the General
Corporation Law of the State of Delaware
--------------------
Time Warner Inc., a corporation organized and existing under the
General Corporation Law of the State of Delaware (formerly named "TW Inc.") (the
"Corporation"), does hereby certify:
A. That a Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or other Special Rights and
Qualifications, Limitations or Restrictions thereof of the Corporation's Series
LMCN-V Common Stock (the "Old Certificate") was filed in the office of the
Secretary of State of the State of Delaware on October 10, 1996.
B. That the amendment set forth in this Certificate of Amendment has
been duly adopted in accordance with Section 242 of the General Corporation Law
of the State of Delaware (the "DGCL").
C. That the Old Certificate is hereby amended to read in its
entirety as follows:
The series of Series Common Stock hereby established shall consist
of 140,000,000 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 of the Corporation.
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, as amended from time to
time.
1.4 "Charter Amendment" shall mean the amendment to the Corporation's
Restated Certificate of Incorporation to increase the number of authorized
shares of the Series Common Stock from 200,000,000 to 600,000,000.
1.5 "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.
2
1.6 "Common Stock" shall mean the class of Common Stock, par value
$.01 per share, of the Corporation, 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), together with any rights
associated generally with the shares of Common Stock.
1.7 "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).
1.8 "Conversion Date" shall have the meaning set forth in Section 3.5.
1.9 "Corporation" shall mean Time Warner Inc., a Delaware corporation,
and any of its successors by operation of law, including by merger or
consolidation.
1.10 "DGCL" shall mean the General Corporation Law of the State of
Delaware, as amended from time to time.
1.11 "Dividend Payment Date" shall have the meaning set forth in
Section 2.1.
1.12 "Formula Number" shall have the meaning set forth in Section 2.1.
1.13 "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 by Amendment No. 1 dated as of June 24,
1997, Amendment No. 2 dated as of May 25, 1999, and as further amended from
time to time.
1.14 "NASDAQ" shall mean The Nasdaq Stock Market.
1.15 "NYSE" shall mean the New York Stock Exchange, Inc.
3
1.16 "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.
1.17 "Permitted Transferee" shall mean any Liberty Party, as such term
is defined in the LMC Agreement.
1.18 "Person" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust,
unincorporated organization or other entity.
1.19 "Preferred Stock" shall mean the class of Preferred Stock, par
value $.10 per share, of the Corporation.
1 1.20 "Record Date" shall have the meaning set forth in Section 2.1.
1.21 "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.
1.22 "Series Common Stock" shall mean the class of Series Common
Stock, par value $.01 per share, of the Corporation.
4
1.23 "Series LMC Common Stock" shall mean the series of Series Common
Stock authorized and designated as Series LMC Common Stock.
1.24 "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.
1.25 "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.
5
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 or in connection with which
a dividend of shares of this Series is paid in accordance with Section
2.4(e)) 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.
6
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 after December 31, 1998:
7
(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 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.
8
(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) Notwithstanding anything to the contrary in this Section
2.4 or the Certificate, if the Corporation pays a dividend with respect to
its outstanding Common Stock in the form of additional shares of Common
Stock, then:
(i) the Corporation may pay a dividend with respect to the
outstanding shares of this Series in the form of additional shares
of this Series, payable at the same time with the same record date
and in the same ratio as the dividend with respect to the Common
Stock (including treatment of fractional shares);
(ii) if the Corporation elects to pay the dividend in
accordance with clause (i) above, the Corporation shall pay a
dividend with respect to the outstanding shares, if any, of Series
LMC Common Stock in the form of additional shares of Series LMC
Common Stock, payable at the same time with the same record date and
in the same ratio as the dividend with respect to the Common Stock
(including treatment of fractional shares); and
9
(iii) if the Corporation pays the dividend in accordance with
clauses (i) and (ii) above, there shall not be any adjustment to the
Formula Number by reason of such dividend with respect to the Common
Stock.
(f) 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).
10
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.
11
3.6 In the event that after December 31, 1998, 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 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.
12
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) 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 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.
13
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 in
connection with which a dividend of shares of this Series is paid in
accordance with Section 2.4(e)) 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.
14
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 or written consent 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 or
written approval of any holder of 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 or written consent 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 or this Section 4.4.
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.
15
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.
16
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): Time Warner 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 canceled 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.
17
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).
D. That effective upon the filing of this Certificate of Amendment
with the Secretary of State of the State of Delaware (the "Effective Time")
each share of Series LMCN-V Common Stock issued and outstanding immediately
prior to the Effective Time ("Old LMCN-V Common Stock") shall thereupon be
reclassified as and become two shares of Series LMCN-V Common Stock (the
"New LMCN-V Common Stock"). The shares of New LMCN-V Common Stock shall be
fully paid and nonassessable.
Each certificate representing issued and outstanding shares of Old
LMCN-V Common Stock (an "Old Certificate") at the Effective Time shall
represent, and the holder thereof shall be entitled upon surrender of such
Old Certificate to the Corporation for cancelation to receive a new
certificate or certificates representing, the number of shares of New
Series LMCN-V Common Stock into which such issued and outstanding shares of
Old LMCN-V Common Stock are reclassified as provided in this Certificate of
Amendment.
Until the surrender of an Old Certificate to the Corporation as
provided herein, dividends or distributions, if any, in respect of the New
LMCN-V Common Stock the ownership of which is evidenced by such Old
Certificate will be paid to the person in whose name such Old Certificate
is registered. After the Effective Time, the holder of record of an Old
Certificate on any record date for a meeting of stockholders of the
Corporation will be entitled to vote the shares of New LMCN-V Common Stock
the ownership of which is evidenced by such Old Certificate as of such
record date on all matters submitted to a vote of the holders of the Series
LMCN-V Common Stock at such meeting.
18
IN WITNESS WHEREOF, Time Warner Inc. has caused this Certificate of
Amendment to be executed by Thomas W. McEnerney, Esq., its Vice President, this
25th day of May, 1999.
TIME WARNER INC.,
by /s/ Thomas W. McEnerney
---------------------------
Name: Thomas W. McEnerney
Title: Vice President
19