Form 8-B
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Registration of Securities of Certain Successor Issuers
Filed Pursuant to Section 12(b) or (g) of
The Securities Exchange Act of 1934
TW INC.
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(To be renamed "Time Warner Inc.")
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(Exact name of registrant as specified in its charter)
DELAWARE 13-3527249
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(State of incorporation) (IRS Employer
Identification No.)
75 Rockefeller Plaza, New York, New York 10019
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(Address of principal executive offices (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Name of each exchange
Title of each class on which each class is
to be so registered to be registered
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Common Stock, New York Stock Exchange
par value $.01 per share Pacific Stock Exchange
Preferred Stock Purchase Rights New York Stock Exchange
Pacific Stock Exchange
Securities to be registered pursuant to Section 12(g) of the Act: None
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Item 1. General Information.
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(a) TW Inc., a Delaware corporation (the "Registrant"),
was incorporated on June 12, 1989. On or after the
closing date of the succession transaction (as
described below), TW Inc. will be renamed "Time
Warner Inc."
(b) The fiscal year of the Registrant ends on December
31 of each year.
Item 2. Transaction of Succession.
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(a) Predecessor Entities:
(i) Time Warner Inc. ("Time Warner"); and
(ii) Turner Broadcasting System, Inc. ("TBS").
(b) Succession Transaction. The description of the
succession transaction and the basis upon which the
securities of the Registrant are to be issued in
exchange for securities of Time Warner and TBS is
incorporated by reference to the Joint Proxy
Statement/Prospectus (the "Joint Proxy
Statement/Prospectus"), which is included as part of
the Registration Statement (the "Registration
Statement") of the Registrant on Form S-4
(Registration No. 333-11471), as filed with the
Securities and Exchange Commission on September 6,
1996. Reference is made to the Section of the Joint
Proxy Statement/Prospectus titled
"Summary--Introduction and Overview of the
Transaction".
Item 3. Securities to be Registered.
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(a) Common Stock, par value $.01 per share ("Common
Stock"):
(i) presently authorized: 1,000 shares;
(ii) presently issued: 1,000 shares; and
(iii) held by or for the account of the Registrant:
zero shares.
On or prior to the closing date of the
succession transaction, the certificate of
incorporation of the Registrant will be restated to
provide for, among other things, the authority of
the Registrant to issue 2,000,000,000 shares of
Common Stock.
(b) Preferred Stock Purchase Rights. A Preferred Stock
Purchase Right (a "Right") will be associated with
each share of Common Stock. Such Rights are to be
issued pursuant to a Rights Agreement (the "Rights
Agreement") between the
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Registrant and ChaseMellon Shareholder Services
L.L.C., as rights agent. As of the date hereof, no
such Rights have been issued.
Item 4. Description of Registrant's Securities to Be Registered.
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The description of the securities to be
registered hereby is incorporated by reference to the
Joint Proxy Statement/Prospectus. For a description of
the Common Stock, reference is made to the Section of the
Joint Proxy Statement/Prospectus titled "Description of
New Time Warner Capital Stock--New Time Warner Common
Stock". For a description of the Rights and the Rights
Agreement, reference is made to the Section of the Joint
Proxy Statement/Prospectus titled "Description of New
Time Warner Capital Stock--New Time Warner Rights
Agreement; New Time Warner Series A Preferred Stock".
Item 5. Financial Statements and Exhibits.
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(a) Financial Statements: None.
(b) Exhibits:
2.1(a) Amended and Restated Agreement and Plan of
Merger (the "Merger Agreement"), dated as of
September 22, 1995, among Time Warner, the
Registrant, Time Warner Acquisition Corp., TW
Acquisition Corp. and TBS (incorporated by
reference to Appendix A- 1(a) to the Joint
Proxy Statement/Prospectus (the "Joint Proxy
Statement/Prospectus"), which is included as
part of the Registration Statement (the
"Registration Statement") of the Registrant on
Form S-4 (Registration No. 333-11471), as filed
with the Securities and Exchange Commission on
September 6, 1996; Exhibits A-1, A-2, B, C-1
and C-2 to the Merger Agreement are
incorporated by reference to Exhibit 2(a) to
the Current Report on Form 8-K dated
November 16, 1995 of Time Warner (File No.
1-8637)).
2.1(b) Amendment No. 1 dated as of
August 8, 1996 to the Merger Agreement
(incorporated by reference to Appendix A-1(b)
to the Joint Proxy Statement/Prospectus).
3.1(a)* Form of Restated Certificate of
Incorporation of the Registrant.
3.1(b) Form of Certificate of the Voting Powers,
Designations, Preferences and Relative,
Participating, Optional or Other Special
Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series LMC Stock
of the Registrant (incorporated by
reference to Exhibit 10(a) to
<PAGE>
the Current Report on Form 8-K dated
September 6, 1996 of Time Warner (File No.
1-8637)(the "September Form 8-K")).
3.1(c) Form of 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
Stock of the Registrant (incorporated by
reference to Exhibit 10(a) to the
September Form 8-K).
3.1(d) Form of Certificate of the Voting Powers,
Designations, Preferences and Relative,
Participating, Optional or Other Special
Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series A
Participating Cumulative Preferred Stock
of the Registrant (incorporated by reference
to Exhibit 3.1(d) to the Registration
Statement).
3.1(e) Form of Certificate of the Voting Powers,
Designations, Preferences and Relative,
Participating, Optional or Other Special
Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series D
Convertible Preferred Stock of the
Registrant (incorporated by reference to
Exhibit 3.1(e) to the Registration
Statement).
3.1(f) Form of Certificate of the Voting Powers,
Designations, Preferences and Relative,
Participating, Optional or Other Special
Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series E
Convertible Preferred Stock of the
Registrant (incorporated by reference to
Exhibit 3.1(f) to the Registration
Statement).
3.1(g) Form of Certificate of the Voting Powers,
Designations, Preferences and Relative,
Participating, Optional or Other Special
Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series F
Convertible Preferred Stock of the
Registrant (incorporated by reference to
Exhibit 3.1(g) to the Registration
Statement).
3.1(h) Form of Certificate of the Voting Powers,
Designations, Preferences and Relative,
Participating, Optional or Other Special
Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series G
Convertible Preferred Stock of the
Registrant (incorporated by reference to
Exhibit 3.1(h) to the Registration
Statement).
3.1(i) Form of Certificate of the Voting Powers,
Designations, Preferences and Relative,
Participating, Optional or Other Special
Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series H
Convertible Preferred Stock of the
Registrant (incorporated by reference to
Exhibit 3.1(i) to the Registration
Statement).
<PAGE>
3.1(j) Form of Certificate of the Voting Powers,
Designations, Preferences and Relative,
Participating, Optional or Other Special
Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series I
Convertible Preferred Stock of the
Registrant (incorporated by reference to
Exhibit 3.1(j) to the Registration
Statement).
3.1(k) Form of Certificate of the Voting Powers,
Designations, Preferences and Relative,
Participating, Optional or Other Special
Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series J
Convertible Preferred Stock of the
Registrant (incorporated by reference to
Exhibit 3.1(k) to the Registration
Statement).
3.1(l) Form of Certificate of the Voting Powers,
Designations, Preferences and Relative,
Participating, Optional or Other Special
Rights, and Qualifications, Limitations or
Restrictions Thereof, of 10 1/4% Series L
Exchangeable Preferred Stock of the
Registrant (incorporated by reference to
Exhibit 3.1(l) to the Registration
Statement).
3.1(m) Form of Certificate of the Voting Powers,
Designations, Preferences and Relative,
Participating, Optional or Other Special
Rights, and Qualifications, Limitations or
Restrictions Thereof, of 10 l/4% Series M
Exchangeable Preferred Stock of the
Registrant (incorporated by reference to
Exhibit 3.1(m) to the Registration
Statement).
3.1(n)* Form of Certificate of Amendment of
Restated Certificate of Incorporation of
the Registrant.
3.2 Form of By-laws of the Registrant
(incorporated by reference to Exhibit 3.2
to the Registration Statement).
4.1 Form of Rights Agreement, between the
Registrant and ChaseMellon Shareholder
Services L.L.C., as Rights Agent
(incorporated by reference to Exhibit 4.1
to the Registration Statement).
10.1 Second Amended and Restated LMC Agreement
(the "LMC Agreement"), dated as of
September 22, 1995, among the Registrant,
Time Warner, Liberty Media Corporation
("LMC") and certain subsidiaries of LMC
(incorporated by reference to Appendix A-2
to the Joint Proxy Statement/Prospectus;
Exhibits A, B, C, D, F, G, J, K and L to
the LMC Agreement are incorporated by
reference to Exhibit 10(a) to the
September Form 8-K).
<PAGE>
10.2 Shareholders' Agreement (the
"Shareholders' Agreement"), dated as of
September 22, 1995, among Time Warner, R.
E. Turner and certain associates and
affiliates of R. E. Turner (incorporated
by reference to Appendix A-3 to the Joint
Proxy Statement/Prospectus; Schedule I to
the Shareholders' Agreement is
incorporated by reference to Exhibit 10(a)
to the Current Report on Form 8-K dated
September 22, 1995 of Time Warner (File
No. 1-8637)).
21* Subsidiaries of the Registrant.
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* Filed herewith
<PAGE>
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of
1934, the Registrant has duly caused this registration statement to
be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of New York, State of New York, on the 1st
day of October, 1996.
TW INC.
by /s/ Thomas W. McEnerney
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Name: Thomas W. McEnerney
Title: Vice President
<PAGE>
INDEX TO EXHIBITS
2.1(a) Amended and Restated Agreement and Plan of Merger (the
"Merger Agreement"), dated as of September 22, 1995, among
Time Warner, the Registrant, Time Warner Acquisition Corp., TW
Acquisition Corp. and TBS (incorporated by reference to
Appendix A-1(a) to the Joint Proxy Statement/Prospectus (the
"Joint Proxy Statement/Prospectus"), which is included as part
of the Registration Statement (the "Registration Statement")
of the Registrant on Form S-4 (Registration No. 333-11471), as
filed with the Securities and Exchange Commission on September 6,
1996; Exhibits A-1, A-2, B, C-1 and C-2 to the Merger
Agreement are incorporated by reference to Exhibit 2(a) to the
Current Report on Form 8-K dated November 16, 1995 of Time
Warner (File No. 1- 8637)).
2.1(b) Amendment No. 1 dated as of August 8, 1996 to the Merger
Agreement (incorporated by reference to Appendix A-1(b) to the
Joint Proxy Statement/Prospectus).
3.1(a)* Form of Restated Certificate of Incorporation of the
Registrant.
3.1(b) Form of Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series LMC Stock of the Registrant
(incorporated by reference to Exhibit 10(a) to the Current
Report on Form 8-K dated September 6, 1996 of Time Warner
(File No. 1-8637)(the "September Form 8-K")).
3.1(c) Form of 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 Stock of the Registrant
(incorporated by reference to Exhibit 10(a) to the September
Form 8-K).
3.1(d) Form of Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series A Participating Cumulative
Preferred Stock of the Registrant (incorporated by reference
to Exhibit 3.1(d) to the Registration Statement).
3.1(e) Form of Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series D Convertible Preferred Stock
of the Registrant (incorporated by reference to Exhibit 3.1(e)
to the Registration Statement).
3.1(f) Form of Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series E Convertible Preferred Stock
of the Registrant (incorporated by reference to Exhibit 3.1(f)
to the Registration Statement).
<PAGE>
3.1(g) Form of Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series F Convertible Preferred Stock
of the Registrant (incorporated by reference to Exhibit 3.1(g)
to the Registration Statement).
3.1(h) Form of Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series G Convertible Preferred Stock
of the Registrant (incorporated by reference to Exhibit 3.1(h)
to the Registration Statement).
3.1(i) Form of Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series H Convertible Preferred Stock
of the Registrant (incorporated by reference to Exhibit 3.1(i)
to the Registration Statement).
3.1(j) Form of Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series I Convertible Preferred Stock
of the Registrant (incorporated by reference to Exhibit 3.1(j)
to the Registration Statement).
3.1(k) Form of Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or
Restrictions Thereof, of Series J Convertible Preferred Stock
of the Registrant (incorporated by reference to Exhibit 3.1(k)
to the Registration Statement).
3.1(l) Form of Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or
Restrictions Thereof, of 10 1/4% Series L Exchangeable
Preferred Stock of the Registrant (incorporated by reference
to Exhibit 3.1(l) to the Registration Statement).
3.1(m) Form of Certificate of the Voting Powers, Designations,
Preferences and Relative, Participating, Optional or Other
Special Rights, and Qualifications, Limitations or
Restrictions Thereof, of 10 l/4% Series M Exchangeable
Preferred Stock of the Registrant (incorporated by reference
to Exhibit 3.1(m) to the Registration Statement).
3.1(n)* Form of Certificate of Amendment of Restated Certificate of
Incorporation of the Registrant.
3.2 Form of By-laws of the Registrant (incorporated by reference
to Exhibit 3.2 to the Registration Statement).
4.1 Form of Rights Agreement, between the Registrant and
ChaseMellon Shareholder Services L.L.C., as Rights Agent
(incorporated by reference to Exhibit 4.1 to the Registration
Statement).
<PAGE>
10.1 Second Amended and Restated LMC Agreement (the "LMC
Agreement"), dated as of September 22, 1995, among the
Registrant, Time Warner, Liberty Media Corporation ("LMC") and
certain subsidiaries of LMC (incorporated by reference to
Appendix A-2 to the Joint Proxy Statement/Prospectus; Exhibits
A, B, C, D, F, G, J, K and L to the LMC Agreement are
incorporated by reference to Exhibit 10(a) to the September
Form 8-K).
10.2 Shareholders' Agreement (the "Shareholders' Agreement"), dated
as of September 22, 1995, among Time Warner, R. E. Turner and
certain associates and affiliates of R. E. Turner
(incorporated by reference to Appendix A-3 to the Joint Proxy
Statement/Prospectus; Schedule I to the Shareholders'
Agreement is incorporated by reference to Exhibit 10(a) to the
Current Report on Form 8-K dated September 22, 1995 of Time
Warner (File No. 1-8637)).
21* Subsidiaries of the Registrant.
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* Filed herewith
RESTATED CERTIFICATE OF INCORPORATION
OF
TW INC.
TW Inc., a corporation organized and existing under the laws of the
State of Delaware, Does Hereby Certify as Follows:
1. The name of the corporation is TW Inc. and the name under
which the corporation was originally incorporated is TPS Acquisition
Inc. The original Certificate of Incorporation was filed with the
Secretary of State of the State of Delaware on June 12, 1989.
2. This Restated Certificate of Incorporation, having been duly
adopted in accordance with Sections 228, 242 and 245 of the General
Corporation Law of the State of Delaware and by the written consent of
the sole stockholder of TW Inc., restates and integrates and further
amends the provisions of the Certificate of Incorporation as amended
or supplemented heretofore. As so restated and integrated and further
amended, the Restated Certificate of Incorporation (hereinafter, this
"Certificate of Incorporation") reads as follows:
ARTICLE I
The name of the corporation (hereinafter called the "Corporation") is
TW Inc.
ARTICLE II
The address of the Corporation's registered office in the State of
Delaware is 1209 Orange Street, Wilmington, County of New Castle, Delaware
19801. The name of the Corporation's registered agent at such address is
The Corporation Trust Company.
ARTICLE III
The purpose of the Corporation is to engage in any lawful act or
activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
ARTICLE IV
SECTION 1. The total number of shares of all classes of stock which
the Corporation shall have authority to issue is 2.45 billion shares,
consisting of (1) 250 million shares of Preferred Stock, par value $0.10
per share ("Preferred Stock"), (2) 2.0 billion shares of Common Stock, par
value $0.01 per share ("Common Stock"), and (3) 200 million shares of
Series Common Stock, par value $0.01 per share ("Series Common Stock"). The
number of authorized shares of any of the Preferred Stock, the Common Stock
or the Series Common Stock may be
<PAGE>
increased or decreased (but not below the number of shares thereof then
outstanding) by the affirmative vote of the holders of a majority in voting
power of the stock of the Corporation entitled to vote thereon irrespective
of the provisions of Section 242(b)(2) of the General Corporation Law of
the State of Delaware (or any successor provision thereto), and no vote of
the holders of any of the Preferred Stock, the Common Stock or the Series
Common Stock voting separately as a class shall be required therefor.
SECTION 2. The Board of Directors is hereby expressly authorized, by
resolution or resolutions, to provide, out of the unissued shares of
Preferred Stock, for series of Preferred Stock and, with respect to each
such series, to fix the number of shares constituting such series and the
designation of such series, the voting powers (if any) of the shares of
such series, and the preferences and relative, participating, optional or
other special rights, if any, and any qualifications, limitations or
restrictions thereof, of the shares of such series. The powers, preferences
and relative, participating, optional and other special rights of each
series of Preferred Stock, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding.
SECTION 3. The Board of Directors is hereby expressly authorized, by
resolution or resolutions, to provide, out of the unissued shares of Series
Common Stock, for series of Series Common Stock and, with respect to each
such series, to fix the number of shares constituting such series and the
designation of such series, the voting powers (if any) of the shares of
such series, and the preferences and relative, participating, optional or
other special rights, if any, and any qualifications, limitations or
restrictions thereof, of the shares of such series. The powers, preferences
and relative, participating, optional and other special rights of each
series of Series Common Stock, and the qualifications, limitations or
restrictions thereof, if any, may differ from those of any and all other
series at any time outstanding.
SECTION 4. (a) Each holder of Common Stock, as such, shall be entitled
to one vote for each share of Common Stock held of record by such holder on
all matters on which stockholders generally are entitled to vote; provided,
however, that, except as otherwise required by law, holders of Common
Stock, as such, shall not be entitled to vote on any amendment to this
Certificate of Incorporation (including any Certificate of Designation
relating to any series of Preferred Stock or Series Common Stock) that
relates solely to the terms of one or more outstanding series of Preferred
Stock or Series Common Stock if the holders of such affected series are
entitled, either separately or together with the holders of one or more
other such series, to vote thereon pursuant to this Certificate of
Incorporation (including any Certificate of Designation relating to any
series of Preferred Stock or Series Common Stock) or pursuant to the
General Corporation Law of the State of Delaware.
(b) Except as otherwise required by law, holders of a series of
Preferred Stock or Series Common Stock, as such, shall be entitled only to
such voting rights, if any, as shall expressly be granted thereto by this
Certificate of Incorporation (including any Certificate of Designation
relating to such series).
(c) Subject to applicable law and the rights, if any, of the holders
of any outstanding series of Preferred Stock or Series Common Stock or any
class or series of stock having a preference over or the right to
participate with the Common Stock with respect to the payment of dividends,
dividends may be declared and paid on the Common Stock at such times and in
such amounts as the Board of Directors in its discretion shall determine.
(d) Upon the dissolution, liquidation or winding up of the
Corporation, subject to the rights, if any, of the holders of any
outstanding series of Preferred Stock or Series Common Stock or any class
or series of stock having a preference over or the right to participate
with the Common Stock with respect to the distribution of assets of the
Corporation upon such dissolution, liquidation or winding up of the
Corporation, the holders of the Common Stock,
<PAGE>
as such, shall be entitled to receive the assets of the Corporation
available for distribution to its stockholders ratably in proportion to the
number of shares held by them.
SECTION 5. Notwithstanding any other provision of this Certificate of
Incorporation to the contrary, but subject to the provisions of any
resolution or resolutions of the Board of Directors adopted pursuant to
this Article IV creating (i) any series of Preferred Stock, (ii) any series
of any other class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation or (iii) any series of Series
Common Stock, outstanding shares of Common Stock, Series Common Stock,
Preferred Stock or any other class or series of stock of the Corporation
shall always be subject to redemption by the Corporation, by action of the
Board of Directors, if in the judgment of the Board of Directors such
action should be taken, pursuant to Section 151(b) of the General
Corporation Law of the State of Delaware (or by any other applicable
provision of law), to the extent necessary to prevent the loss or secure
the reinstatement of any license or franchise from any governmental agency
held by the Corporation or any Subsidiary to conduct any portion of the
business of the Corporation or such Subsidiary, which license or franchise
is conditioned upon some or all of the holders of the Corporation's stock
of any class or series possessing prescribed qualifications. The terms and
conditions of such redemption shall be as follows:
(a) the redemption price of the shares to be redeemed pursuant to
this Section 5 shall be equal to the Fair Market Value of such shares;
(b) the redemption price of such shares may be paid in cash,
Redemption Securities or any combination thereof;
(c) if less than all the shares held by Disqualified Holders are
to be redeemed, the shares to be redeemed shall be selected in such
manner as shall be determined by the Board of Directors, which may
include selection first of the most recently purchased shares thereof,
selection by lot or selection in any other manner determined by the
Board of Directors;
(d) at least 30 days' written notice of the Redemption Date shall
be given to the record holders of the shares selected to be redeemed
(unless waived in writing by such holder), provided that the
Redemption Date may be the date on which written notice shall be given
to record holders if the cash or Redemption Securities necessary to
effect the redemption shall have been deposited in trust for the
benefit of such record holders and subject to immediate withdrawal by
them upon surrender of the stock certificates for their shares to be
redeemed;
(e) from and after the Redemption Date, any and all rights of
whatever nature, which may be held by the owners of shares selected
for redemption (including without limitation any rights to vote or
participate in dividends declared on stock of the same class or series
as such shares), shall cease and terminate and they shall thenceforth
be entitled only to receive the cash or Redemption Securities payable
upon redemption; and
(f) such other terms and conditions as the Board shall determine.
For purposes of this Section 5:
(i) "Disqualified Holder" shall mean any holder of shares of
stock of the Corporation of any class or series whose holding of such
stock may result in the loss of any license or franchise from any
governmental agency held by the Corporation or any Subsidiary to
conduct any portion of the business of the Corporation or any
Subsidiary.
<PAGE>
(ii) "Fair Market Value" of a share of the Corporation's stock of
any class or series shall mean the average (unweighted) Closing Price
for such a share for each of the 45 most recent days on which shares
of stock of such class or series shall have been traded preceding the
day on which notice of redemption shall be given pursuant to paragraph
(d) of this Section 5; provided, however, that if shares of stock of
such class or series are not traded on any securities exchange or in
the over-the-counter market, "Fair Market Value" shall be determined
by the Board of Directors in good faith; and provided further,
however, that "Fair Market Value" as to any stockholder who purchased
his stock within 120 days of a Redemption Date need not (unless
otherwise determined by the Board of Directors) exceed the purchase
price paid by him. "Closing Price" on any day means the reported last
sales price regular way or, in case no such sale takes place, the
average of the reported closing bid and asked prices regular way on
the New York Stock Exchange Composite Tape, or, if stock of the class
or series in question is not quoted on such Composite Tape, on the New
York Stock Exchange, or, if such stock is not listed on such exchange,
on the principal United States registered securities exchange on which
such stock is listed, or, if such stock is not listed on any such
exchange, the highest closing sales price or bid quotation for such
stock on The Nasdaq Stock Market or any system then in use, or if no
such prices or quotations are available, the fair market value on the
day in question as determined by the Board of Directors in good faith.
(iii) "Redemption Date" shall mean the date fixed by the Board of
Directors for the redemption of any shares of stock of the Corporation
pursuant to this Section 5.
(iv) "Redemption Securities" shall mean any debt or equity
securities of the Corporation, any Subsidiary or any other
corporation, or any combination thereof, having such terms and
conditions as shall be approved by the Board of Directors and which,
together with any cash to be paid as part of the redemption price, in
the opinion of any nationally recognized investment banking firm
selected by the Board of Directors (which may be a firm which provides
other investment banking, brokerage or other services to the
Corporation), has a value, at the time notice of redemption is given
pursuant to paragraph (d) of this Section 5, at least equal to the
Fair Market Value of the shares to be redeemed pursuant to this
Section 5 (assuming, in the case of Redemption Securities to be
publicly traded, such Redemption Securities were fully distributed and
subject only to normal trading activity).
(v) "Subsidiary" shall mean any corporation more than 50% of
whose outstanding stock having ordinary voting power in the election
of directors is owned by the Corporation, by a Subsidiary or by the
Corporation and one or more Subsidiaries.
ARTICLE V
Subject to Section 253 of the General Corporation Law of the State of
Delaware, the vote of stockholders of the Corporation required to approve
Business Combinations (as hereinafter defined) shall be as set forth in
this Article V.
SECTION 1. In addition to any affirmative vote required by law or by
this Certificate of Incorporation or any resolution or resolutions of the
Board of Directors adopted pursuant to Article IV of this Certificate of
Incorporation, and except as otherwise expressly provided in Section 3 of
this Article V:
<PAGE>
(a) any merger or consolidation of the Corporation with (i) any
Interested Stockholder or (ii) any other corporation (whether or not
itself an Interested Stockholder) which is, or after such merger or
consolidation would be, an Affiliate or Associate of an Interested
Stockholder; or
(b) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder or any Affiliate or Associate of
any Interested Stockholder of (i) all or substantially all the assets
of the Corporation or (ii) assets of the Corporation or any of its
Subsidiaries representing in the aggregate more than 75% of the total
value of the assets of the Corporation and its consolidated
Subsidiaries as reflected on the most recent consolidated balance
sheet of the Corporation and its consolidated Subsidiaries prepared in
accordance with generally accepted accounting principles then in
effect; or
(c) (i) any sale, lease, exchange, mortgage, pledge, transfer or
other disposition (in one transaction or a series of transactions) to
or with any Interested Stockholder or any Affiliate or Associate of
any Interested Stockholder of any assets of the Corporation or of any
Subsidiary having an aggregate Fair Market Value of $100,000,000 or
more, but less than the amount referred to in clause (ii) of paragraph
(b) of this Section 1, or (ii) any merger or consolidation of any
Subsidiary of the Corporation having assets with an aggregate Fair
Market Value of $100,000,000 or more in a transaction not covered by
paragraph (b) of this Section 1 with (x) any Interested Stockholder or
(y) any other corporation (whether or not itself an Interested
Stockholder) which is, or after such merger or consolidation would be,
an Affiliate or Associate of an Interested Stockholder; or
(d) the issuance or transfer by the Corporation or any Subsidiary
(in one transaction or a series of transactions) to any Interested
Stockholder or any Affiliate or Associate of any Interested
Stockholder of any securities of the Corporation or any Subsidiary in
exchange for cash, securities or other property (or a combination
thereof) having an aggregate Fair Market Value of $100,000,000 or
more, other than the issuance of securities upon the conversion of
convertible securities of the Corporation or any Subsidiary which were
not acquired by such Interested Stockholder (or such Affiliate or
Associate) from the Corporation or a Subsidiary; or
(e) the adoption of any plan or proposal for the liquidation or
dissolution of the Corporation proposed by or on behalf of any
Interested Stockholder or any Affiliate or Associate of any Interested
Stockholder; or
(f) any reclassification of securities (including any reverse
stock split) or recapitalization of the Corporation, or any merger or
consolidation of the Corporation with any of its Subsidiaries, or any
other transaction (whether or not with or into or otherwise involving
any Interested Stockholder), which in any such case has the effect,
directly or indirectly, of increasing the proportionate share of the
outstanding shares of any class or series of stock or securities
convertible into stock of the Corporation or any Subsidiary which is
directly or indirectly beneficially owned by any Interested
Stockholder or any Affiliate or Associate of any Interested
Stockholder;
shall not be consummated without (i) (x) the affirmative vote of the
holders of at least 80% of the combined voting power of the shares of stock
of all classes and series of the Corporation entitled to vote generally in
the election of directors ("Voting Stock") outstanding at the time of
approval and (y) the affirmative vote of a majority of the combined voting
power of the shares of Voting Stock held by Disinterested Stockholders
outstanding at the time of approval, in each case voting together as a
single class, or (ii) the affirmative vote of the holders of all the shares
of stock of all classes and series of the Corporation outstanding at the
time of approval. Such affirmative vote shall
<PAGE>
be required notwithstanding the fact that no vote may be required, or that
a lesser percentage may be specified, by law or by this Certificate of
Incorporation or any resolution or resolutions of the Board of Directors
adopted pursuant to Article IV of this Certificate of Incorporation or in
any agreement with any national securities exchange or otherwise.
SECTION 2. The term "Business Combination" as used in this Article V
shall mean any transaction which is referred to in any one or more of
paragraphs (a) through (f) of Section 1 of this Article V.
SECTION 3. The provisions of Section 1 of this Article V shall not be
applicable to any particular Business Combination, and such Business
Combination shall require only such affirmative vote as is required by law
and any other provision of this Certificate of Incorporation and any
resolution or resolutions of the Board of Directors adopted pursuant to
Article IV of this Certificate of Incorporation, if all the conditions
specified in any of the following paragraphs (a), (b), (c) or (d) are met:
(a) (i) such Business Combination shall have been approved by a
majority of the Disinterested Directors and (ii) the Interested
Stockholder involved in such Business Combination (x) acquired such
status as an Interested Stockholder in a manner substantially
consistent with an agreement or memorandum of understanding approved
by the Board of Directors prior to the time such Interested
Stockholder became an Interested Stockholder and (y) has complied with
all requirements imposed by such agreement or memorandum of
understanding; or
(b) in the case of any Business Combination described in
paragraph (a) or (f) of Section 1 of this Article V, (i) such Business
Combination shall have been approved by a majority of the
Disinterested Directors, (ii) such Business Combination shall not have
resulted, directly or indirectly, in an increase of more than 10% in
the total amount of shares of any class or series of stock or
securities convertible into stock of the Corporation or any Subsidiary
which was directly or indirectly beneficially owned by an Interested
Stockholder and all Affiliates and Associates of such Interested
Stockholder at the time of the approval of such Business Combination
by a majority of the Disinterested Directors, and (iii) such Business
Combination shall not have been consummated within a period of two
years after the consummation of any other Business Combination
described in paragraph (a), (b), (c), (d), (e) or (f) of Section 1 of
this Article V (whether or not such other Business Combination shall
have been approved by a majority of the Disinterested Directors) which
had the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class or series
of stock or securities convertible into stock of the Corporation or
any Subsidiary which was directly or indirectly beneficially owned by
such Interested Stockholder or any Affiliate or Associate of such
Interested Stockholder; or
(c) in the case of any Business Combination described in
paragraph (c) or (d) of Section 1 of this Article V, such Business
Combination shall have been approved by a majority of the
Disinterested Directors; or
(d) all of the six conditions specified in the following clauses
(i) through (vi) shall have been met:
(i) The transaction constituting the Business Combination
shall provide for a consideration to be received by holders of
Common Stock in exchange for all their shares of Common Stock,
and the aggregate amount of the cash and the Fair Market Value as
of the date of the consummation of the Business Combination of
any consideration other than cash to be received per share by
holders of Common Stock in such Business Combination shall be at
least equal to the highest of the following:
<PAGE>
(A) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fee) paid in order to acquire any shares of Common Stock
beneficially owned by the Interested Stockholder which were
acquired (i) within the two-year period immediately prior to the
Announcement Date or (ii) in the transaction in which it became
an Interested Stockholder, whichever is higher; and
(B) the Fair Market Value per share of Common Stock on the
Announcement Date or on the Determination Date, whichever is
higher; and
(ii) if the transaction constituting the Business Combination
shall provide for a consideration to be received by holders of any
class or series of outstanding Voting Stock other than Common Stock,
the aggregate amount of the cash and the Fair Market Value as of the
date of the consummation of the Business Combination of any
consideration other than cash to be received per share by holders of
shares of such Voting Stock shall be at least equal to the highest of
the following (it being intended that the requirements of this clause
(d) (ii) shall be required to be met with respect to every class and
series of such outstanding Voting Stock, whether or not the Interested
Stockholder beneficially owns any shares of a particular class or
series of Voting Stock):
(A) (if applicable) the highest per share price (including
any brokerage commissions, transfer taxes and soliciting dealers'
fees) paid in order to acquire any shares of such class or series
of Voting Stock beneficially owned by the Interested Stockholder
which were acquired (i) within the two- year period immediately
prior to the Announcement Date or (ii) in the transaction in
which it became an Interested Stockholder, whichever is higher;
(B) (if applicable) the highest preferential amount per
share to which the holders of shares of such class or series of
Voting Stock are entitled in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the
Corporation; and
(C) the Fair Market Value per share of such class or series
of Voting Stock on the Announcement Date or on the Determination
Date, whichever is higher; and
(iii) the consideration to be received by holders of a particular
class or series of outstanding Voting Stock (including Common Stock)
shall be in cash or in the same form as was previously paid in order
to acquire shares of such class or series of Voting Stock which are
beneficially owned by the Interested Stockholder and, if the
Interested Stockholder beneficially owns shares of any class or series
of Voting Stock which were acquired with varying forms of
consideration, the form of consideration to be received by holders of
such class or series of Voting Stock shall be either cash or the form
used to acquire the largest number of shares of such class or series
of Voting Stock beneficially owned by it; and
(iv) after such Interested Stockholder has become an Interested
Stockholder and prior to the consummation of such Business
Combination:
(A) except as approved by a majority of the Disinterested
Directors, there shall have been no failure to declare and pay at
the regular dates therefor the full amount of any dividends
(whether or not cumulative) payable on the Preferred Stock or any
class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation;
<PAGE>
(B) there shall have been (x) no reduction in the annual
rate of dividends paid on the Common Stock (except as necessary
to reflect any subdivision of the Common Stock), except as
approved by a majority of the Disinterested Directors, and (y) an
increase in such annual rate of dividends (as necessary to
prevent any such reduction) in the event of any reclassification
(including any reverse stock split), recapitalization,
reorganization or any similar transaction which has the effect of
reducing the number of outstanding shares of the Common Stock,
unless the failure so to increase such annual rate is approved by
a majority of the Disinterested Directors; and
(C) such Interested Stockholder shall not have become the
beneficial owner of any additional shares of Voting Stock except
as part of the transaction in which it became an Interested
Stockholder; and
(v) after such Interested Stockholder has become an Interested
Stockholder, such Interested Stockholder shall not have received the
benefit, directly or indirectly (except proportionately as a
stockholder), of any loans, advances, guarantees, pledges or other
financial assistance provided by the Corporation, whether in
anticipation of or in connection with such Business Combination or
otherwise; and
(vi) a proxy or information statement describing the proposed
Business Combination and complying with the requirements of the
Securities Exchange Act of 1934 and the rules and regulations
thereunder (or any subsequent provisions replacing such Act, rules or
regulations) shall be mailed to public stockholders of the Corporation
at least 30 days prior to the consummation of such Business
Combination (whether or not such proxy or information statement is
required to be mailed pursuant to such Act or subsequent provisions).
SECTION 4. For the purposes of this Article V:
(a) A "person" shall mean any individual, firm,
corporation, partnership, trust or other entity.
(b) "Interested Stockholder" shall mean any person (other than
the Corporation or any Subsidiary) who or which:
(1) is the beneficial owner, directly or indirectly, of 20%
or more of the combined voting power of the then outstanding
shares of Voting Stock; or
(2) is an Affiliate of the Corporation and at any time
within the two-year period immediately prior to the date in
question was the beneficial owner, directly or indirectly, of 20%
or more of the combined voting power of the then outstanding
shares of Voting Stock; or
(3) is an assignee of or has otherwise succeeded to the
beneficial ownership of any shares of Voting Stock which were at
any time within the two-year period immediately prior to the date
in question beneficially owned by any Interested Stockholder, if
such assignment or succession shall have occurred in the course
of a transaction or series of transactions not involving a public
offering within the meaning of the Securities Act of 1933.
(c) "Disinterested Stockholder" shall mean a stockholder of the
Corporation who is not an Interested Stockholder or an Affiliate or an
Associate of an Interested Stockholder.
<PAGE>
(d) A person shall be a "beneficial owner" of any Voting Stock:
(1) which such person or any of its Affiliates or Associates
beneficially owns, directly or indirectly; or
(2) which such person or any of its Affiliates or Associates
has (a) the right to acquire (whether such right is exercisable
immediately or only after the passage of time), pursuant to any
agreement, arrangement or understanding or upon the exercise of
conversion rights, exchange rights, warrants or options, or
otherwise (excluding pursuant to any rights associated generally
with the Common Stock), or (b) the right to vote or to direct the
vote pursuant to any agreement, arrangement or understanding; or
(3) which are beneficially owned, directly or indirectly, by
any other person with which such person or any of its Affiliates
or Associates has any agreement, arrangement or understanding for
the purpose of acquiring, holding, voting or disposing of any
shares of Voting Stock.
(e) For the purposes of determining whether a person is an
Interested Stockholder pursuant to paragraph (b) of this Section 4,
the number of shares of Voting Stock deemed to be outstanding shall
include shares deemed owned by such person through application of
paragraph (d) of this Section 4 but shall not include any other shares
of Voting Stock which may be issuable to other persons pursuant to any
agreement, arrangement or understanding, or upon exercise of
conversion rights, exchange rights, warrants or options, or otherwise.
(f) "Affiliate" and "Associate" shall have the respective
meanings ascribed to such terms in Rule 12b-2 of the General Rules and
Regulations under the Securities Exchange Act of 1934, as in effect on
January 1, 1983.
(g) "Subsidiary" shall have the meaning set forth in Section 5 of
Article IV of this Certificate of Incorporation; provided, however,
that for the purposes of the definition of Interested Stockholder set
forth in paragraph (b) of this Section 4, the term "Subsidiary" shall
mean only a corporation of which a majority of each class of equity
security is owned by the Corporation, by a Subsidiary or by the
Corporation and one or more Subsidiaries.
(h) "Disinterested Director" means any member of the Board of
Directors of the Corporation who is unaffiliated with, and not a
nominee of, the Interested Stockholder and was a member of the Board
of Directors prior to the time that the Interested Stockholder became
an Interested Stockholder, and any successor of a Disinterested
Director who is unaffiliated with, and not a nominee of, the
Interested Stockholder and who is recommended to succeed a
Disinterested Director by a majority of Disinterested Directors then
on the Board of Directors.
(i) "Fair Market Value" means: (1) in the case of stock, the
highest closing sale price during the 30-day period immediately
preceding the date in question of a share of such stock on the New
York Stock Exchange Composite Tape, or, if such stock is not quoted on
the Composite Tape, on the New York Stock Exchange, or, if such stock
is not listed on such Exchange, on the principal United States
securities exchange registered under the Securities Exchange Act of
1934 on which such stock is listed, or, if such stock is not listed on
any such exchange, the highest closing sales price or bid quotation
with respect to a share of such stock during the 30-day period
preceding the date in question on The Nasdaq Stock Market or any
system then in use, or, if no such quotations are available, the fair
market value on the date in question of a share of such stock as
determined by a majority of the Disinterested Directors in good faith;
and (2) in the case of stock of any class
<PAGE>
or series which is not traded on any securities exchange or in the
over-the-counter market or in the case of property other than cash or
stock, the fair market value of such stock or property, as the case may be,
on the date in question as determined by a majority of the Disinterested
Directors in good faith.
(j) "Announcement Date" means the date of first public
announcement of the proposed Business Combination.
(k) "Determination Date" means the date on which the Interested
Stockholder became an Interested Stockholder.
SECTION 5. A majority of the Disinterested Directors of the
Corporation shall have the power and duty to determine, on the basis of
information known to them after reasonable inquiry, all facts necessary to
determine compliance with this Article V, including, without limitation,
(a) whether a person is an Interested Stockholder, (b) the number of shares
of Voting Stock beneficially owned by any person, (c) whether a person is
an Affiliate or Associate of another person, (d) whether the requirements
of Section 3 of this Article V have been met with respect to any Business
Combination and (e) whether the assets which are the subject of any
Business Combination have, or the consideration to be received for the
issuance or transfer of securities by the Corporation or any Subsidiary in
any Business Combination has, (i) an aggregate Fair Market Value of
$100,000,000 or more or (ii) represent in the aggregate more than 75% of
the total value of the assets of the Corporation and its consolidated
Subsidiaries prepared in accordance with generally accepted accounting
principles then in effect; and the good faith determination of a majority
of the Disinterested Directors on such matters shall be conclusive and
binding for all purposes of this Article V.
SECTION 6. Nothing contained in this Article V shall be construed to
relieve an Interested Stockholder from any fiduciary obligation imposed by
law.
ARTICLE VI
SECTION 1. Except as otherwise fixed by or pursuant to the provisions
of Article IV of this Certificate of Incorporation relating to the rights
of the holders of any series of Preferred Stock or Series Common Stock or
any class or series of stock having a preference over the Common Stock as
to dividends or upon liquidation, the number of the directors of the
Corporation shall be fixed from time to time by or pursuant to the By-laws
of the Corporation. The directors, other than those who may be elected by
the holders of any series of Preferred Stock or Series Common Stock or any
class or series of stock having a preference over the Common Stock as to
dividends or upon liquidation pursuant to the terms of this Certificate of
Incorporation or any resolution or resolutions providing for the issue of
such class or series of stock adopted by the Board of Directors, shall be
classified, with respect to the time for which they severally hold office,
into three classes, as nearly equal in number as possible, one class to be
originally elected for a term expiring at the annual meeting of
stockholders to be held in 1997, another class to be originally elected for
a term expiring at the annual meeting of stockholders to be held in 1998,
and another class to be originally elected for a term expiring at the
annual meeting of stockholders to be held in 1999, with each class to hold
office until its successors are elected and qualified. At each annual
meeting of the stockholders of the Corporation, the date of which shall be
fixed by or pursuant to the By-laws of the Corporation, the successors of
the class of directors whose term expires at that meeting shall be elected
to hold office for a term expiring at the third succeeding annual meeting
of stockholders. The election of directors need not be by written ballot.
No decrease in the number of directors constituting the Board of Directors
shall shorten the term of any incumbent director.
<PAGE>
SECTION 2. Advance notice of nominations for the election of directors
shall be given in the manner and to the extent provided in the By-laws of
the Corporation.
SECTION 3. Except as otherwise provided for or fixed by or pursuant to
the provisions of Article IV of this Certificate of Incorporation relating
to the rights of the holders of any series of Preferred Stock or Series
Common Stock or any class or series of stock having a preference over the
Common Stock as to dividends or upon liquidation, newly created
directorships resulting from any increase in the number of directors may be
filled by the Board of Directors, or as otherwise provided in the By-laws,
and any vacancies on the Board of Directors resulting from death,
resignation, removal or other cause shall only be filled by the affirmative
vote of a majority of the remaining directors then in office, even though
less than a quorum of the Board of Directors, or by a sole remaining
director, or as otherwise provided in the By-laws. Any director elected in
accordance with the preceding sentence of this Section 3 shall hold office
for the remainder of the full term of the class of directors in which the
new directorship was created or the vacancy occurred and until such
director's successor shall have been elected and qualified.
SECTION 4. Subject to the rights of the holders of any series of
Preferred Stock or Series Common Stock or any class or series of stock
having a preference over the Common Stock as to dividends or upon
liquidation, any director may be removed from office only for cause and
only by the affirmative vote of the holders of a majority of the combined
voting power of the then outstanding shares of Voting Stock, voting
together as a single class. For purposes of this Section 4, "cause" shall
mean the wilful and continuous failure of a director to substantially
perform such director's duties to the Corporation (other than any such
failure resulting from incapacity due to physical or mental illness) or the
wilful engaging by a director in gross misconduct materially and
demonstrably injurious to the Corporation.
ARTICLE VII
Subject to the rights of the holders of any series of Preferred Stock
or Series Common Stock or any class or series of stock having a preference
over the Common Stock as to dividends or upon liquidation, any action
required or permitted to be taken by the stockholders of the Corporation
must be effected at a duly called annual or special meeting of stockholders
of the Corporation and may not be effected by any consent in writing by
such stockholders. Except as otherwise required by law and subject to the
rights of the holders of any series of Preferred Stock or Series Common
Stock or any class or series of stock having a preference over the Common
Stock as to dividends or upon liquidation, special meetings of stockholders
of the Corporation may be called only by the Board of Directors pursuant to
a resolution approved by a majority of the entire Board of Directors or as
otherwise provided in the By-laws of the Corporation.
ARTICLE VIII
In furtherance and not in limitation of the powers conferred upon it
by law, the Board of Directors is expressly authorized to adopt, repeal,
alter or amend the By-laws of the Corporation by the vote of a majority of
the entire Board of Directors. In addition to any requirements of law and
any other provision of this Certificate of Incorporation or any resolution
or resolutions of the Board of Directors adopted pursuant to Article IV of
this Certificate of Incorporation (and notwithstanding the fact that a
lesser percentage may be specified by law, this Certificate of
Incorporation or any such resolution or resolutions), the affirmative vote
of the holders of 80% or
<PAGE>
more of the combined voting power of the then outstanding shares of Voting
Stock, voting together as a single class, shall be required for
stockholders to adopt, amend, alter or repeal any provision of the By-laws.
ARTICLE IX
In addition to any requirements of law and any other provisions of
this Certificate of Incorporation or any resolution or resolutions of the
Board of Directors adopted pursuant to Article IV of this Certificate of
Incorporation (and notwithstanding the fact that a lesser percentage may be
specified by law, this Certificate of Incorporation or any such resolution
or resolutions), the affirmative vote of the holders of 80% or more of the
combined voting power of the then outstanding shares of Voting Stock,
voting together as a single class, shall be required to amend, alter or
repeal, or adopt any provision inconsistent with, this Article IX or
Articles V, VI, VII or VIII, or Section 5 of Article IV, of this
Certificate of Incorporation; provided, however, that the affirmative vote
of a majority of the combined voting power of the then outstanding shares
of Voting Stock held by the Disinterested Stockholders (as defined in
Section 4 of Article V of this Certificate of Incorporation), voting
together as a single class, shall also be required to amend, alter or
repeal, or adopt any provision inconsistent with, Article V of this
Certificate of Incorporation or the requirements of this proviso. Subject
to the foregoing provisions of this Article IX, the Corporation reserves
the right to amend, alter or repeal any provision contained in this
Certificate of Incorporation, in the manner now or hereafter prescribed by
statute, and all rights conferred upon stockholders herein are subject to
this reservation.
ARTICLE X
SECTION 1. To the fullest extent that the General Corporation Law of
the State of Delaware or any other law of the State of Delaware as it
exists or as it may hereafter be amended permits the limitation or
elimination of the liability of directors, no director of the Corporation
shall be liable to the Corporation or its stockholders for monetary damages
for breach of fiduciary duty as a director. No amendment to or repeal of
this Article X shall apply to or have any effect on the liability or
alleged liability of any director of the Corporation for or with respect to
any acts or omissions of such director occurring prior to such amendment or
repeal.
SECTION 2. In addition to any requirements of law and any other
provisions of this Certificate of Incorporation or any resolution or
resolutions of the Board of Directors adopted pursuant to Article IV of
this Certificate of Incorporation (and notwithstanding the fact that a
lesser percentage may be specified by law, this Certificate of
Incorporation or any such resolution or resolutions), the affirmative vote
of the holders of 80% or more of the
<PAGE>
combined voting power of the then outstanding shares of Voting Stock,
voting together as a single class, shall be required to amend, alter or
repeal, or adopt any provision inconsistent with, this Article X.
In Witness Whereof, I, Gerald M. Levin, Chairman of the Board of
Directors and Chief Executive Officer of TW Inc., have executed this
Restated Certificate of Incorporation as of the 10th day of October, 1996,
and Do Hereby Certify under the penalties of perjury that the facts stated
in this Restated Certificate of Incorporation are true.
----------------------------
Gerald M. Levin
Chairman of the Board of
Directors and
Chief Executive Officer
CERTIFICATE OF AMENDMENT
OF
RESTATED CERTIFICATE OF INCORPORATION
OF
TW INC.
TW INC., a corporation organized and existing under the laws
of the State of Delaware (the "Corporation"), does hereby certify
as follows:
1. Article I of the Restated Certificate of Incorporation of
the Corporation is hereby amended to read in its entirety as
follows:
"The name of the corporation (hereinafter called the
"Corporation") is TIME WARNER INC."
2. The foregoing amendment to the Restated Certificate of
Incorporation of the Corporation was duly adopted in accordance
with the provisions of Section 242 of the General Corporation Law
of the State of Delaware.
3. This Certificate of Amendment of Restated Certificate of
Incorporation, and the amendment to the Restated Certificate of
Incorporation of the Corporation provided for herein, shall not
become effective until and shall become effective at : p.m.
(local time in Dover, Delaware) on October 10, 1996.
IN WITNESS WHEREOF, TW Inc. has caused this Certificate of
Amendment of Restated Certificate of Incorporation to be signed by
Thomas W. McEnerney, its authorized officer, as of this 10th day of
October, 1996.
TW INC.
By:
------------------------------
Name: Thomas W. McEnerney
Title: Vice President
Exhibit 21
TW Inc.
-------
List of Subsidiaries
--------------------
Percentage
Ownership by State of
Company TW Inc. Incorporation
------- ------- -------------
Time Warner Acquisition Corp. 100% Delaware
TW Acquisition Corp. 100% Georgia
