As Filed with the Securities and Exchange Commission on
May 23, 2000 Registration
No. 333-36446
==============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
------------------------
AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
------------------------
Time Warner Inc.
(Exact name of registrant as specified in its charter)
Delaware
(State or other jurisdiction of incorporation or organization)
13-3527249
(I.R.S. Employer Identification No.)
75 Rockefeller Plaza
New York, NY 10019
(212) 484-8000
(Address, including zip code, and telephone number, including area
code, of registrant's principal executive offices)
Christopher P. Bogart
Executive Vice President, Secretary and General Counsel
Time Warner Inc.
75 Rockefeller Plaza
New York, NY 10019
(212) 484-8000
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
With Copies To:
Richard Hall
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
(212) 474-1000
Approximate date of commencement of proposed sale to public: From time to
time after the effective date of this Registration Statement, as determined by
market conditions.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [ ]
If any of the securities being registered on this Form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities Act
of 1933, as amended, other than securities offered only in connection with
dividend or interest reinvestment plans, please check the following box: [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]/
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering.[ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.[ ]
The registrant hereby amends this registration statement on such date or
dates as may be necessary to delay its effective date until the registrant
shall file a further amendment which specifically states that this
registration statement shall thereafter become effective in accordance with
Section 8(a) of Securities Act of 1933 or until the registration statement
shall become effective on such date as the Securities and Exchange Commission,
acting pursuant to such Section 8(a), may determine.
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SUBJECT TO COMPLETION, DATED MAY 23, 2000
PROSPECTUS
4,000,000 Shares
Time Warner Inc.
Common Stock, Par Value $0.01 per Share
This prospectus relates to 4,000,000 shares of common stock, par value
$0.01 per share, of Time Warner Inc. that Merrill Lynch, Pierce, Fenner &
Smith, Inc. received upon exercise of a call option granted to Merrill Lynch
by R.E. Turner, the Vice Chairman of Time Warner, on May 12, 1997. Merrill
Lynch may resell the shares or deliver them to persons from whom it borrowed
shares of Time Warner common stock for the purpose of making short sales for
its account. To the extent that these shares of Time Warner common stock are
offered for sale by Merrill Lynch, they will be offered for sale from time to
time pursuant to this prospectus for the account of Merrill Lynch. Time Warner
will not receive any of the proceeds from such sales.
The Time Warner common stock covered by this prospectus is listed on the
New York Stock Exchange ("NYSE") under the symbol "TWX". On May 22, 2000, the
last sale price for one share of Time Warner common stock was $76.125 as
reported on the NYSE Composite Transactions Tape.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or passed upon the
adequacy or accuracy of this prospectus. Any representation to the contrary is
a criminal offense.
The date of this prospectus is _____, 2000
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2
Table of Contents
Page
Where you can find more information...................................... 2
Incorporation of certain documents by reference.......................... 3
The Company.............................................................. 4
Use of Proceeds.......................................................... 6
Plan of Distribution..................................................... 6
Legal Opinions........................................................... 6
Experts.................................................................. 6
WHERE YOU CAN FIND MORE INFORMATION
Time Warner files reports, proxy statements and other information with
the Securities and Exchange Commission pursuant to public reporting
requirements of the Securities Exchange Act of 1934. These documents may be
inspected and copied at the public reference facilities maintained by the
Securities and Exchange Commission at:
Public Reference Room New York Regional Office Chicago Regional Office
450 Fifth Street, N.W. 7 World Trade Center Citicorp Center
Room 1024 Suite 1300 500 West Madison Street
Washington, D.C. 20549 New York, NY 10048 (Suite 1400) Chicago, Illinois
60661
Information on the operation of the Public Reference Room may be obtained
by calling the Securities and Exchange Commission at 1-800-SEC-0330. These
Securities and Exchange Commission filings are also available to the public
from commercial document retrieval services and at the internet world wide web
site maintained by the Securities and Exchange Commission at
"http://www.sec.gov".
Time Warner's common stock is traded on the New York Stock Exchange.
Reports, proxy statements and other information concerning Time Warner may be
inspected at the offices of the New York Stock Exchange, Inc., 20 Broad
Street, New York, New York.
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INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The Securities and Exchange Commission allows Time Warner to "incorporate
by reference" information into this prospectus, which means that Time Warner
can disclose important information to you by referring you to other documents
filed separately with the Securities and Exchange Commission. The information
incorporated by reference is considered part of this prospectus, except for
any information superseded by information contained directly in this
prospectus or in later filed documents incorporated by reference in this
prospectus.
This prospectus incorporates by reference the documents set forth below
that Time Warner has previously filed with the Securities and Exchange
Commission. These documents contain important business and financial
information about Time Warner that is not included in or delivered with this
prospectus.
Time Warner Inc. (File No. 1-12259) Period or Date
1. Annual Report on Form 10-K Year ended December 31, 1999.
2. Quarterly Report on Form 10-Q Quarter ended March 31, 2000
3. Current Reports on Form 8-K January 10, 2000 (filed January 14, 2000);
January 23, 2000 (filed January 28,
2000); February 2, 2000 (filed February
10, 2000); January 10, 2000 (filed
February 11, 2000); March 13, 2000 (filed
March 13, 2000); March 31, 2000 (filed
March 31, 2000); April 12, 2000 (filed
April 19, 2000); April 19, 2000 (filed
April 25, 2000) and May 22, 2000 (filed
May 22, 2000).
4. The description of Time Warner
Inc. common stock, par value
$0.01 per share, set forth in
Item 4 in the registration
statement on Form 8-B as filed
with the Securities and
Exchange Commission on October
2, 1996 pursuant to Section
12(b) of the Securities
Exchange Act of 1934, as
amended by a Form 8-A/A filed
with the Securities and
Exchange Commission on January
31, 2000.
Time Warner also incorporates by reference additional documents that may
be filed with the Securities and Exchange Commission under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act after the date of this
prospectus and prior to the time all of the securities offered by this
prospectus are sold. These include periodic reports, such as Annual Reports on
Form 10-K, Quarterly Reports on Form 10-Q and Current Reports on Form 8-K, as
well as proxy statements.
If you are a stockholder, Time Warner may have sent you some of the
documents incorporated by reference, but you can obtain any of them through
Time Warner, the Securities and Exchange Commission or the Securities and
Exchange Commission's Internet web site as described above. Documents
incorporated by reference are available from Time Warner without charge,
excluding all exhibits, except that if Time Warner has specifically
incorporated by reference an exhibit in this prospectus, the exhibit will also
be provided without charge. You may obtain documents incorporated by reference
in this prospectus by requesting them in writing or by telephone from Time
Warner at the following address:
Time Warner Inc.
75 Rockefeller Plaza
New York, NY 10019
Telephone: (212) 484-6971
Attn: Investor Relations
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THE COMPANY
Because the following is a summary of the business of Time Warner, it
does not contain all the information that may be important to investors. You
should read it together with the detailed information and financial statements
referred to or incorporated by reference herein.
Description of Business
Time Warner is the world's leading media and entertainment company. Time
Warner's principal business objective is to create and distribute branded
information and entertainment copyrights throughout the world. Time Warner
classifies its business interests into six fundamental areas:
o Cable Networks, consisting principally of interests in cable television
programming;
o Publishing, consisting principally of interests in magazine publishing,
book publishing and direct marketing;
o Music, consisting principally of interests in recorded music and music
publishing;
o Filmed Entertainment, consisting principally of interests in filmed
entertainment, television production and television broadcasting;
o Cable, consisting principally of interests in cable television systems;
and
o Digital Media, consisting principally of interests in Internet-related
and digital media businesses.
Investment in TWE
Time Warner is a holding company that derives its operating income and
cash flow from its investments in its subsidiaries, including Time Warner
Entertainment Company, L.P., or "TWE", a limited partnership that owns a
majority of Time Warner's interests in filmed entertainment, television
production, television broadcasting and cable television systems, and a
portion of its interests in cable television programming. Time Warner owns
general and limited partnership interests in TWE consisting of 74.49% of the
pro rata priority capital and residual equity capital, and 100% of the junior
priority capital. The remaining 25.51% limited partnership interests in the
pro rata priority capital and residual equity capital of TWE are held by a
subsidiary of MediaOne Group, Inc. A significant portion of TWE's cable
television systems is held by the Time Warner Entertainment --
Advance/Newhouse Partnership, of which TWE is the managing partner and owns a
64.8% interest.
Agreement to Merge with AOL
On January 10, 2000, Time Warner announced that it had entered into an
Agreement and Plan of Merger dated as of January 10, 2000, between America
Online, Inc. ("AOL") and Time Warner. Under the terms of the merger agreement,
Time Warner and AOL have formed a new holding company, named AOL Time Warner
Inc., which wholly owns two subsidiaries. At the closing of the transaction,
one of these subsidiaries will merge with and into AOL, and the other
subsidiary will merge with and into Time Warner. As a result of the mergers,
Time Warner and AOL will each become a wholly owned subsidiary of AOL Time
Warner Inc.
Under the terms of the merger agreement, Time Warner and AOL stock will
be converted to AOL Time Warner stock at fixed exchange ratios. Each share of
Time Warner common stock will be exchanged for 1.5 shares of AOL Time Warner
common stock, and each share of AOL common stock will be exchanged for 1.0
share of AOL Time Warner common stock. Each share of each series of Time
Warner Preferred Stock will be converted into one share of a substantially
identical series of AOL Time Warner Preferred Stock.
The mergers are subject to various conditions set forth in the merger
agreement, including the adoption of the merger agreement by the stockholders
of each of Time Warner and AOL, certain U.S. and foreign regulatory approvals
and other customary conditions. It is anticipated that the mergers will be
completed during the fall of 2000. Additional information concerning the
mergers is contained in Time Warner's Current Report on Form 8-K dated May 22,
2000.
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Combination Agreement with EMI
On January 24, 2000, Time Warner and EMI Group plc announced that they
had signed definitive agreements to combine their recorded music and music
publishing businesses into a global joint venture. The new company, Warner EMI
Music, will be one of the world's leading music companies, with broad domestic
and international holdings. The global joint venture will be owned equally by
Time Warner and EMI Group. The eleven-member Warner EMI Music board of
directors, controlled by Time Warner, will consist of six Time Warner
designees and five EMI designees.
The transaction is subject to certain conditions, including regulatory
consents and EMI Group shareholder approval, and is expected to be completed
by the end of 2000. Additional information concerning the transaction is
contained in Time Warner's Current Report on Form 8-K dated January 23, 2000.
General
Time Warner's principal executive offices are located at 75 Rockefeller
Plaza, New York, New York 10019 and its telephone number is (212) 484-8000.
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USE OF PROCEEDS
Time Warner will not receive any of the proceeds from the sale from time
to time of the Time Warner common stock offered hereby. All proceeds from the
sale of the common stock offered hereby will be for the account of Merrill
Lynch, as described below. See "Plan of Distribution" described below.
PLAN OF DISTRIBUTION
Merrill Lynch may resell the shares of Time Warner common stock covered
by this prospectus or deliver them to persons from whom it borrowed shares of
common stock of Time Warner for the purpose of making short sales for its
account.
Merrill Lynch may resell the shares of Time Warner common stock covered
by this prospectus from time to time on markets where the common stock of Time
Warner is traded or on an exchange in accordance with rules of the exchange at
prices related to market prices prevailing at the time of sale. In addition,
any of the shares covered by this prospectus that qualify for sale pursuant to
Rule 144 under the Securities Act may be sold under Rule 144 rather than
pursuant to this prospectus.
Any broker-dealers or agents who participate in the distribution of the
shares may be deemed to be an "underwriter" within the meaning of the
Securities Act of 1933, and any profit on the sale of the shares by such
broker-dealer or agent may be deemed to be underwriting commissions under the
Securities Act.
Mr. Turner will pay the registration fee in connection with the
registration of the Time Warner common stock covered by this prospectus. Time
Warner will pay all other expenses and fees related to such registration. Time
Warner has agreed to indemnify Mr. Turner, Merrill Lynch, each officer and
director of Merrill Lynch and any person who controls Mr. Turner or Merrill
Lynch against certain liabilities and expenses arising out of or based upon
the information set forth or incorporated by reference in this prospectus and
the registration statement of which this prospectus forms a part, including
liabilities under the Securities Act. Each of Mr. Turner and Merrill Lynch has
agreed to indemnify Time Warner and each other and, in each case, each of its
respective officers and directors and any person who controls such person
against certain liabilities and expenses arising out of or based upon
information specifically provided by such selling stockholder for inclusion in
this prospectus and the registration statement of which this prospectus forms
a part, including liabilities under the Securities Act.
Time Warner may, under specified circumstances, determine at any time to
suspend the availability of this prospectus for use by Merrill Lynch.
LEGAL OPINIONS
Certain legal matters in connection with the Time Warner common stock
offered hereby were passed upon for Time Warner by Cravath, Swaine & Moore,
Worldwide Plaza, 825 Eighth Avenue, New York, New York 10019.
EXPERTS
Ernst & Young LLP, independent auditors, have audited the consolidated
financial statements, schedule and supplementary information of Time Warner
and the consolidated financial statements and schedule of TWE included in Time
Warner's Annual Report on Form 10-K for the year ended December 31, 1999, as
set forth in their reports, which are incorporated by reference in this
prospectus and elsewhere in this registration statement. These consolidated
financial statements, schedules and supplementary information are incorporated
by reference in reliance on Ernst & Young LLP's reports, given on their
authority as experts in accounting and auditing.
Ernst & Young LLP, independent auditors, have audited the consolidated
financial statements of America Online, Inc. for the three years ended June
30, 1999 incorporated by reference as Exhibit 99 to its Form 10Q/A for the
quarterly period ended March 31, 2000, as set forth in their report, which is
incorporated by reference in Time Warner's Current Reports on Form 8-K dated
January 10, 2000, March 31, 2000 and May 22, 2000, which are incorporated by
reference in this prospectus and elsewhere in the registration statement.
These consolidated financial statements are incorporated by reference in
reliance on Ernst & Young LLP's report, given on their authority as experts in
accounting and auditing.
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7
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. Other Expenses of Issuance and Distribution
The following statement sets forth the amounts of expenses of Time Warner
in connection with the distribution of the common stock. All such expenses,
other than the Securities and Exchange Commission registration fee, are
estimates. Mr. Turner will pay the registration fee, and the legal and
accounting fees and expenses will be paid by Time Warner.
Securities and Exchange Commission registration fee............... $ 90,000.00
Accounting fees and expenses.......................................$ 7,500.00
Legal fees and expenses............................................$ 20,000.00
-----------
Total expenses.....................................................$117,500.00
ITEM 15. Indemnification of Directors and Officers.
Section 145 of the Delaware General Corporation Law (the 'DGCL') provides
that a corporation may indemnify directors and officers as well as other
employees and individuals against expenses (including attorneys' fees),
judgments, fines and amounts paid in settlement in connection with specified
actions, suits or proceedings, whether civil, criminal, administrative or
investigative (other than an action by or in the right of the corporation -- a
'derivative action'), if they acted in good faith and in a manner they
reasonably believed to be in or not opposed to the best interests of the
corporation and, with respect to any criminal action or proceedings, had no
reasonable cause to believe their conduct was unlawful. A similar standard is
applicable in the case of derivative actions, except that indemnification only
extends to expenses (including attorneys' fees) actually and reasonably
incurred in connection with the defense or settlement of such action, and the
statute requires court approval before there can be any indemnification where
the person seeking indemnification has been found liable to the corporation.
The statute provides that it is not exclusive of other indemnification that
may be granted by a corporation's charter, by-laws, disinterested director
vote, stockholder vote, agreement or otherwise.
Article VI of the By-laws of Time Warner requires indemnification to the
fullest extent permitted under Delaware law of any person who is or was a
director or officer of Time Warner who is or was involved or threatened to be
made so involved in any action, suit or proceeding, whether criminal, civil,
administrative or investigative, by reason of the fact that such person is or
was serving as a director, officer or employee of Time Warner or any
predecessor of Time Warner or was serving at the request of Time Warner as a
director, officer or employee of any other enterprise.
Section 102 (b) (7) of the DGCL permits a provision in the certificate of
incorporation of each corporation organized thereunder, such as Time Warner,
eliminating or limiting, with certain exceptions, the personal liability of a
director to the corporation or its stockholders for monetary damages for
breach of fiduciary duty as a director. Section 1, Article X of Time Warner's
Restated Certificate of Incorporation eliminates the liability of directors to
the extent permitted by Section 102(b) (7) of the DGCL.
The foregoing statements are subject to the detailed provisions of
Sections 145 and 102(b) (7) of the DGCL, Article VI of such By-laws and
Section 1, Article X of such Certificate of Incorporation, as applicable.
The Directors' and Officers' Liability and Reimbursement Insurance Policy
of Time Warner is designed to reimburse the registrant for any payments made
by it pursuant to the foregoing indemnification. The policy has coverage of
$50,000,000.
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8
ITEM 16. Exhibits.
Exhibit No. Description
4.1 Restated Certificate of Incorporation of Time Warner as filed
with the Secretary of State of the State of Delaware on October
10, 1996 (which is incorporated herein by reference to Exhibit
4.3 to Time Warner's Post-Effective Amendment No. 1 on Form S-8
to Time Warner's Registration Statement on Form S-4 filed with
the Securities and Exchange Commission on October 11, 1996 (the
"1996 S-8 Registration Statement")).
4.2 Certificate of Amendment of Restated Certificate of
Incorporation of Time Warner as filed with the Secretary of
State of the State of Delaware on May 26, 1999 (which is
incorporated herein by reference to Exhibit 3.(i)(b) to Time
Warner's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999 (the "1999 Second Quarter Form 10-Q")).
4.3 Certificate of Amendment of Restated Certificate of
Incorporation of Time Warner as filed with the Secretary of
State of the State of Delaware on May 19, 1997 (which is
incorporated herein by reference to Exhibit 3.(i)(c) to Time
Warner's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997).
4.4 Certificate of Amendment of Restated Certificate of
Incorporation of the Registrant as filed with the Secretary of
State of the State of Delaware on October 10, 1996 (which is
incorporated herein by reference to Exhibit 4.4 to Time
Warner's 1996 S-8 Registration Statement).
4.5 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 LMC Common Stock
of Time Warner as filed with the Secretary of State of the
State of Delaware on May 26, 1999 (which is incorporated herein
by reference to Exhibit 3.(i)(f) to Time Warner's 1999 Second
Quarter Form 10-Q).
4.6 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 as filed with the Secretary of State of
the State of Delaware on May 26, 1999 (which is incorporated
herein by reference to Exhibit 3.(i)(i) to Time Warner's 1999
Second Quarter Form 10-Q).
4.7 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 Time Warner as
filed with the Secretary of State of the State of Delaware on
October 10, 1996 (which is incorporated herein by reference to
Exhibit 4.7 to Time Warner's 1996 S-8 Registration Statement).
4.8 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 Time Warner as filed with the
Secretary of State of the State of Delaware on October 10, 1996
(which is incorporated herein by reference to Exhibit 4.9 to
Time Warner's 1996 S-8 Registration Statement).
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4.9 Certificate of Correction 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 E Convertible
Preferred Stock of Time Warner as filed with the Secretary of
State of the State of Delaware on November 13, 1996 (which is
incorporated herein by reference to Exhibit 3.(i)(h) to Time
Warner's Annual Report on Form 10-K for the year ended December
31, 1996 (the "1996 Form 10-K")).
4.10 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 Time Warner as filed with the
Secretary of State of the State of Delaware on October 10, 1996
(which is incorporated herein by reference to Exhibit 4.10 to
Time Warner's 1996 S-8 Registration Statement).
4.11 Certificate of Correction 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 F Convertible
Preferred Stock of Time Warner as filed with the Secretary of
State of the State of Delaware on November 13, 1996 (which is
incorporated herein by reference to Exhibit 3.(i)(j) to Time
Warner's 1996 Form 10-K).
4.12 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 Time Warner as filed with the
Secretary of State of the State of Delaware on October 10, 1996
(which is incorporated herein by reference to Exhibit 4.13 to
Time Warner's 1996 S-8 Registration Statement).
4.13 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 as filed with
the Secretary of State of the State of Delaware on October 10,
1996 (which is incorporated herein by reference to Exhibit 4.14
to Time Warner's 1996 S-8 Registration Statement).
4.14 By-laws of Time Warner as of November 19, 1998 (which are
incorporated herein by reference to Exhibit 3.(ii) to Time
Warner's Annual Report on Form 10-K for fiscal year ended
December 31, 1998, as amended by Form 10-K/A dated June 28,
1999 (the "1998 Form 10-K")).
4.15 Rights Agreement (the "Rights Agreement") dated as of October
10, 1996 between Time Warner and ChaseMellon Shareholder
Services L.L.C. ("ChaseMellon") as Rights Agent (which is
incorporated herein by reference to Exhibit 4.17 to Time
Warner's 1996 S-8 Registration Statement).
4.16 Amendment No. 1 to the Rights Agreement dated as of December
15, 1998 between Time Warner and ChaseMellon (which is
incorporated herein by reference to Exhibit 4.2 to Time
Warner's 1998 Form 10-K).
4.17 Amendment No. 2 to the Rights Agreement dated as of January
21,1999 between Time Warner and ChaseMellon (which is
incorporated herein by reference to Exhibit 4.3 to Time
Warner's 1998 Form 10-K).
4.18 Amendment No. 3 to the Rights Agreement dated as of January 10,
2000 between Time Warner and ChaseMellon (which is incorporated
herein by reference to Exhibit 4 to Time Warner's Form 8-A/A
filed with the Securities and Exchange Commission on January
31, 2000).
5 Opinion of Cravath, Swaine & Moore.*
23.1 Consent of Ernst & Young LLP.
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23.2 Consent of Ernst & Young LLP.
23.3 Consent of Counsel (included in Exhibit 5).
24 Power of Attorney.*
- ----------------------------
* Previously filed.
ITEM 17. Undertakings.
A. Undertakings Pursuant to Rule 415
The undersigned registrant hereby undertakes:
(a) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the
Securities Act of 1933 (the "Securities Act");
(ii) to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post-effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth in
the registration statement. Notwithstanding the foregoing, any increase
or decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high end of the estimated maximum offering
range may be reflected in the form of prospectus filed with the
Commission under Rule 424(b) if, in the aggregate, the changes in volume
and price represent no more than a 20% change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table
in the effective registration statement;
(iii) to include any material information with respect to the plan
of distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply
if the information required to be included in a post-effective amendment
by those paragraphs is contained in periodic reports filed by the
registrant pursuant to Section 13 or Section 15(d) of the Securities
Exchange Act of 1934 that are incorporated by reference in the
Registration Statement;
(b) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof; and
(c) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the termination
of the offering.
B. Undertaking Regarding Filings Incorporating Subsequent Exchange Act
Documents By Reference
The undersigned registrants hereby undertake that, for purposes of
determining any liability under the Securities Act of 1933, each filing of
Time Warner's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers, and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission
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11
such indemnification is against public policy as expressed in the Securities
Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit, or
proceeding) is asserted by such director, officer, or controlling person in
connection with the securities being registered, the registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused this
amendment to the 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 May 23, 2000.
TIME WARNER INC.,
by /s/ James W. Barge
--------------------
Name: James W. Barge
Title: Vice President and Controller
Pursuant to the requirements of the Securities Act of 1933, as amended,
this amendment to the Registration Statement has been signed below on May 23,
2000 by the following persons in the capacities indicated.
SIGNATURE TITLE
(i) Principal Executive Officer:
* Director, Chairman of the Board and Chief
- -------------------------------- Executive Officer
(Gerald M. Levin)
(ii) Principal Financial Officer:
* Executive Vice President and Chief
- -------------------------------- Financial Officer
(Joseph A. Ripp)
(iii) Principal Accounting Officer:
/s/ James W. Barge Vice President and Controller
- --------------------------------
(James W. Barge)
<PAGE>
13
(iv) Directors:
*
- --------------------------------
(J. Carter Bacot)
- --------------------------------
(Stephen F. Bollenbach)
*
- --------------------------------
(John C. Danforth)
- --------------------------------
(Gerald Greenwald)
*
- --------------------------------
(Carla A. Hills)
*
- --------------------------------
(Reuben Mark)
- --------------------------------
(Michael A. Miles)
*
- --------------------------------
(Richard D. Parsons)
- --------------------------------
(R. E. Turner)
- --------------------------------
(Francis T. Vincent, Jr.)
Constituting a majority of the Board of Directors
* By: /s/ Thomas W. McEnerney
--------------------------
Pursuant to Power of Attorney dated May 5, 2000
<PAGE>
14
Exhibit Index
Exhibit No. Description
4.1 Restated Certificate of Incorporation of Time Warner as filed
with the Secretary of State of the State of Delaware on October
10, 1996 (which is incorporated herein by reference to Exhibit
4.3 to Time Warner's Post-Effective Amendment No. 1 on Form S-8
to Time Warner's Registration Statement on Form S-4 with the
Securities and Exchange Commission on October 11, 1996 (the
"1996 S-8 Registration Statement")).
4.2 Certificate of Amendment of Restated Certificate of
Incorporation of Time Warner as filed with the Secretary of
State of the State of Delaware on May 26, 1999 (which is
incorporated herein by reference to Exhibit 3.(i)(b) to Time
Warner's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1999 (the "1999 Second Quarter Form 10-Q")).
4.3 Certificate of Amendment of Restated Certificate of
Incorporation of Time Warner as filed with the Secretary of
State of the State of Delaware on May 19, 1997 (which is
incorporated herein by reference to Exhibit 3.(i)(c) to Time
Warner's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997).
4.4 Certificate of Amendment of Restated Certificate of
Incorporation of Time Warner as filed with the Secretary of
State of the State of Delaware on October 10, 1996 (which is
incorporated herein by reference to Exhibit 4.4 to Time
Warner's 1996 S-8 Registration Statement).
4.5 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 LMC Common Stock
of Time Warner as filed with the Secretary of State of the
State of Delaware on May 26, 1999 (which is incorporated herein
by reference to Exhibit 3.(i)(f) to Time Warner's 1999 Second
Quarter Form 10-Q).
4.6 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 as filed with the Secretary of State of
the State of Delaware on May 26, 1999 (which is incorporated
herein by reference to Exhibit 3.(i)(i) to Time Warner's 1999
Second Quarter Form 10-Q).
4.7 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 Time Warner as
filed with the Secretary of State of the State of Delaware on
October 10, 1996 (which is incorporated herein by reference to
Exhibit 4.7 to Time Warner's 1996 S-8 Registration Statement).
4.8 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 Time Warner as filed with the
Secretary of State of the State of Delaware on October 10, 1996
(which is incorporated herein by reference to Exhibit 4.9 to
Time Warner's 1996 S-8 Registration Statement).
4.9 Certificate of Correction 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 E Convertible
Preferred Stock of Time Warner as filed with the Secretary of
State of the State of Delaware on November 13, 1996 (which is
incorporated herein by reference to Exhibit 3.(i)(h) to Time
Warner's Annual Report on Form 10-K for the year ended December
31, 1996 (the "1996 Form 10-K")).
<PAGE>
15
4.10 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 Time Warner as filed with the
Secretary of State of the State of Delaware on October 10, 1996
(which is incorporated herein by reference to Exhibit 4.10 to
Time Warner's 1996 S-8 Registration Statement).
4.11 Certificate of Correction 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 F Convertible
Preferred Stock of Time Warner as filed with the Secretary of
State of the State of Delaware on November 13, 1996 (which is
incorporated herein by reference to Exhibit 3.(i)(j) to Time
Warner's 1996 Form 10-K).
4.12 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 Time Warner as filed with the
Secretary of State of the State of Delaware on October 10, 1996
(which is incorporated herein by reference to Exhibit 4.13 to
Time Warner's 1996 S-8 Registration Statement).
4.13 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 Time Warner as filed with the
Secretary of State of the State of Delaware on October 10, 1996
(which is incorporated herein by reference to Exhibit 4.14 to
Time Warner's 1996 S-8 Registration Statement).
4.14 By-laws of Time Warner as of November 19, 1998 (which are
incorporated herein by reference to Exhibit 3.(ii) to Time
Warner's Annual Report on Form 10-K for fiscal year ended
December 31, 1998, as amended by Form 10-K/A dated June 28,
1999 (the "1998 Form 10-K")).
4.15 Rights Agreement (the "Rights Agreement") dated as of October
10, 1996 between Time Warner and ChaseMellon Shareholder
Services L.L.C. ("ChaseMellon") as Rights Agent (which is
incorporated herein by reference to Exhibit 4.17 to Time
Warner's 1996 S-8 Registration Statement).
4.16 Amendment No. 1 to the Rights Agreement dated as of December
15, 1998 between Time Warner and ChaseMellon (which is
incorporated herein by reference to Exhibit 4.2 to Time
Warner's 1998 Form 10-K).
4.17 Amendment No. 2 to the Rights Agreement dated as of January
21,1999 between Time Warner and ChaseMellon (which is
incorporated herein by reference to Exhibit 4.3 to Time
Warner's 1998 Form 10-K).
4.18 Amendment No. 3 to the Rights Agreement dated as of January 31,
2000 between Time Warner and ChaseMellon (which is incorporated
herein by reference to Form 8-A/A as filed with the Securities
and Exchange Commission on January 31, 2000).
5 Opinion of Cravath, Swaine & Moore.*
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Ernst & Young LLP.
23.3 Consent of Counsel (included in Exhibit 5).
24 Power of Attorney.*
- ---------------------------
* Previously filed.
Exhibit 23.1
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-36446)
pertaining to the registration of 4,000,000 shares of Time Warner Inc. ("Time
Warner") Common Stock and associated Rights to Purchase Series A Participating
Cumulative Preferred Stock and to the incorporation by reference in the
Registration Statement and related Prospectus of our reports dated February 2,
2000, with respect to the consolidated financial statements, schedule and
supplementary information of Time Warner and the consolidated financial
statements and schedule of Time Warner Entertainment Company, L.P.,
incorporated by reference from Time Warner's Annual Report on Form 10-K for
the year ended December 31, 1999, filed with the Securities and Exchange
Commission.
/s/ Ernst & Young LLP
New York, New York
May 19, 2000
Exhibit 23.2
Consent of Independent Auditors
We consent to the reference to our firm under the caption "Experts" in
Amendment No. 1 to the Registration Statement (Form S-3 No. 333-36446)
pertaining to the registration of 4,000,000 shares of Time Warner Inc. Common
Stock and associated Rights to Purchase Series A Participating Cumulative
Preferred Stock and to the incorporation by reference in the Registration
Statement and related Prospectus of our report dated July 21, 1999, except for
Note 3, as to which the date is May 12, 2000, with respect to the consolidated
financial statements of America Online, Inc. for the three years ended June
30, 1999, incorporated by reference as Exhibit 99 to its Form 10-Q/A for the
quarterly period ended March 31, 2000, incorporated by reference in Time
Warner Inc.'s Current Reports on Form 8-K dated January 10, 2000, March 31,
2000 and May 22, 2000, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
McLean, Virginia
May 19, 2000
