EXHIBIT 3.01
AT&T CORP.
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RESTATED CERTIFICATE OF
INCORPORATION OF AMERICAN
TELEPHONE AND TELEGRAPH COMPANY
FILED JANUARY 10, 1989
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WITH AMENDMENTS DATED JUNE 8, 1989,
MARCH 18, 1992, JUNE 1, 1992, APRIL 20, 1994, JUNE 8, 1998,
MARCH 9, 1999, APRIL 12, 2000 AND JUNE 2, 2000
<PAGE>
RESTATED CERTIFICATE OF INCORPORATION OF
AMERICAN TELEPHONE AND TELEGRAPH COMPANY
UNDER SECTION 807 OF THE BUSINESS
CORPORATION LAW
We, the undersigned, being a Vice President and the Secretary,
respectively, of American Telephone and Telegraph Company, do hereby certify as
follows:
1. The name of the corporation is "American Telephone and Telegraph
Company."
2. The Certificate of Incorporation of the corporation was filed in the
office of the Secretary of State of New York on March 3, 1885.
3. The text of the Certificate of Incorporation (1) is hereby amended
pursuant to authority vested in the Board of Directors by the Certificate of
Incorporation of the corporation, as heretofore amended, and in accordance with
Section 502 of the Business Corporation Law to delete in its entirety Article
EIGHTH thereof stating the number, designation, relative rights, preferences,
and limitations pertaining to four series of preferred shares, all of which
shares have been redeemed by the corporation, and renumber the articles
subsequent thereto sequentially following Article SEVENTH; and (2) as so
amended and as amended heretofore is hereby restated to read as herein set
forth in full:
"We do hereby associate ourselves together for the purpose of
constructing, buying, owning, leasing, or otherwise obtaining, lines of
electric telegraph partly within and party beyond the limits of the State
of New York, and of equipping, using, operating, or otherwise maintaining,
the same; and of becoming a body politic and corporate under and by virtue
of the provisions of an act of the Legislature of the State of New York
entitled 'An Act to provide for the incorporation and regulation of
telegraph companies,' passed April 12, 1848, and the various acts
amendatory thereof or supplemental thereto; and of having and exercising
all and every of the powers, privileges, franchises and immunities in and
by said acts conferred. And in pursuance of the requirements of the
various acts aforesaid, and for the purposes above set forth, we do hereby
declare and certify as follows,
"FIRST. The name assumed to distinguish such association and to be
used in its dealings, and by which it may sue and be sued, is the American
Telephone and Telegraph Company.
"SECOND. The general route of the lines of telegraph of said
association will be from a point or points in the city of New York along
all rail roads, bridges, highways and other practicable, suitable and
convenient ways or courses, leading thence to the cities of Albany,
Boston, and the intermediate cities, towns and places, also from a point
or points in and through the city of New York, and thence through and
across the Hudson and East rivers and the bay and harbor of New York, to
Jersey City, Long Island City and Brooklyn, and along all rail roads,
bridges, highways and other practicable, suitable and convenient ways
and courses to the cities of Philadelphia, Baltimore, Washington,
Richmond, Charleston, Mobile and New Orleans, and to all intermediate
cities, towns and places; and in like manner to the cities of Buffalo,
Pittsburgh, Cleveland, Cincinnati, Louisville, Memphis, Indianapolis,
Chicago, Saint Louis, Kansas City, Keokuk, Des Moines, Detroit, Milwaukee,
Saint Paul, Minneapolis, Omaha, Cheyenne, Denver, Salt Lake City, San
Francisco and Portland, and to all intermediate cities, towns and places,
and also along all rail roads, bridges, highways and other practicable,
suitable and convenient ways
<PAGE>
and courses as may be necessary or proper for the purpose of connecting
with each other one or more points in said city of New York, and in each
of the cities, towns and places hereinabove specifically or generally
designated.
"And it is further declared and certified that the general route of
the lines of this association, in addition to those hereinbefore described
or designated, will connect one or more points in each and every city,
town or place in the State of New York with one or more points in each and
every other city, town or place in said State, and in each and every other
of the United States, and in Canada and Mexico, and each and every of said
cities, towns and places is to be connected with each and every other
city, town or place in said States and Countries, and also by cable and
other appropriate means with the rest of the known world as may hereafter
become necessary or desirable in conducting the business of this
association.
"THIRD. The aggregate number of shares which the corporation is
authorized to issue is 1,600,000,000 shares, consisting of 1,500,000,000
common shares having a par value of $1 pre share and 100,000,000 preferred
shares having a par value of $1 per share.
"The preferred shares may be issued from time to time in one or more
series. All preferred shares of all series shall rank equally and be
identical in all respects except that the Board of Directors is authorized
to fix the number of shares in each series, the designation thereof and,
subject to the provisions of this Article Third, the relative rights,
preferences and limitations of each series and the variations in such
rights, preferences and limitations as between series and specifically is
authorized to fix with respect to each series:
"(a) the dividend rate on the shares of such series and the date or
dates from which dividends shall be cumulative;
"(b) the times when, the prices at which, and all other terms and
conditions upon which, shares of such series shall be redeemable;
"(c) the amounts which the holders of shares of such series shall be
entitled to receive upon the liquidation, dissolution or winding up of the
corporation, which amounts may vary depending on whether such liquidation,
dissolution or winding up is voluntary or involuntary and, if voluntary,
may vary at different dates;
"(d) whether or not the shares of such series shall be subject to the
operation of a purchase, retirement or sinking fund and, if so, the extent
to and manner n which such purchase, retirement or sinking fund shall be
applied to the purchase or redemption of the shares of such series for
retirement or for other corporate purposes and the terms and provisions
relative to the operation of the said fund or funds;
"(e) whether or not the shares of such series shall be convertible
into or exchangeable for shares of any other class or series and, if so,
the price or prices or the rate or rates of conversion or exchange and the
method, if any, of adjusting the same;
"(f) the restrictions, if any, upon the payment of dividends or
making of other distributions on, and upon the purchase or other
acquisition of, common shares;
"(g) the restrictions, if any, upon the creation of indebtedness, and
the restrictions, if any, upon the issue of any additional shares ranking
on a parity with or prior to the shares of such
<PAGE>
series in addition to the restrictions provided for in this Article Third;
"(h) the voting powers, if any, of the shares of such series in
addition to the voting powers provided for in this Article Third; and
"(i) such other rights, preferences and limitations as shall not be
inconsistent with this Article Third.
"All shares of any particular series shall rank equally and be identical in all
respects except that shares of any one series issued at different times may
differ as to the date from which dividends shall be cumulative.
"Dividends on preferred shares of each series shall be cumulative from the
date or dates fixed with respect to such series and shall be paid or declared
or set apart for payment for all past dividend periods and for the current
dividend period before any dividends (other than dividends payable in common
shares) shall be declared or paid or set apart for payment on common shares.
Whenever, at any time, full cumulative dividends for all past dividend periods
and for the current dividend period shall have been paid or declared and set
apart for payment on all then outstanding preferred shares and all requirements
with respect to any purchase, retirement or sinking fund or funds for all
series of preferred shares shall have been complied with, the Board of
Directors may declare dividends on the common shares and the preferred shares
shall not be entitled to share therein.
"Upon any liquidation, dissolution or winding up of the corporation, the
holders of preferred shares of each series shall be entitled to receive the
amounts to which such holders are entitled as fixed with respect to such
series, including all dividends accumulated to the date of final distribution,
before any payment or distribution of assets of the corporation shall be made
to or set apart for the holders of common shares and after such payments shall
have been made in full to the holders of preferred shares, the holders of
common shares shall be entitled to receive any and all assets remaining to be
paid or distributed to shareholders and the holders of preferred shares shall
not be entitled to share therein. For the purposes of this paragraph, the
voluntary sale, conveyance, lease, exchange or transfer of all or substantially
all the property or assets of the corporation or a consolidation or merger of
the corporation with one or more other corporations (whether or not the
corporation is the corporation surviving such consolidation or merger) shall
not be deemed to be a liquidation, dissolution or winding up, voluntary or
involuntary.
"The aggregate amount which all preferred shares outstanding at any time
shall be entitled to receive on involuntary liquidation, dissolution or winding
up shall not exceed $8,000,000,000.
"So long as any preferred shares are outstanding, the corporation will not
(a) without the affirmative vote or consent of the holders of at least 66-2/3%
of all the preferred shares at the time outstanding, (i) authorize shares of
stock ranking prior to the preferred shares, or (ii) change any provision of
this Article Third so as to affect adversely the preferred shares; (b) without
the affirmative vote or consent of the holders of at least 66-2/3% of any
series of preferred shares at the time outstanding, change any of the
provisions of such series so as to affect adversely the shares of such series;
(c) without the affirmative vote or consent of the holders of at least a
majority of all the preferred shares at the time outstanding, (i) increase the
authorized number of preferred shares or (ii) authorize shares of any other
class of stock ranking on a parity with the preferred shares.
"Whenever, at any time or times, dividends payable on preferred
shares shall be in default in an aggregate amount equivalent to six full
quarterly dividends on any series of preferred shares at the time
<PAGE>
outstanding, the number of directors then constituting the Board of
Directors of the corporation shall ipso facto be increased by two, and the
outstanding preferred shares shall, in addition to any other voting
rights, have the exclusive right, voting separately as a class and without
regard to series, to elect two directors of the corporation to fill such
newly created directorships and such right shall continue until such time
as all dividends accumulated on all preferred shares to the latest
dividend payment date shall have been paid or declared and set apart for
payment.
"No holder of preferred shares of any series, irrespective of any
voting or other rights of shares of such series, shall have, as such
holder, any preemptive right to purchase any other shares of the
corporation or any securities convertible into or entitling the holder to
purchase such other shares.
"If in any case the amounts payable with respect to any requirements
to retire preferred shares are not paid in full in the case of all series
with respect to which such requirements exist, the number of shares to be
retired in each series shall be in proportion to the respective amounts
which would be payable on account of such requirements if all amounts
payable were paid in full.
"FOURTH. The number of directors shall be as provided for in the
By-Laws.
"FIFTH. The duration of the corporation shall be perpetual.
"SIXTH. The office of the corporation is located in the Borough of
Manhattan, City and County of New York, State of New York.
"SEVENTH. The Secretary of State of the State of New York is
designated as agent of the corporation upon whom process against it may be
served. The post office address to which the Secretary of State shall mail
a copy of any process served upon him as agent of the corporation is
American Telephone and Telegraph Company, 550 Madison Avenue, New York,
New York 10022.
"EIGHTH. No holder of common shares shall have, as such holder, any
preemptive right to purchase any shares or other securities of the
corporation.
"NINTH. No director shall be personally liable to the Corporation or
any of its shareholders for damages for any breach of duty as a director;
provided, however, that the foregoing provision shall not eliminate or
limit (i) the liability of a director if a judgment or other final
adjudication adverse to him or her establishes that his or her acts or
omissions were in bad faith or involved intentional misconduct or a
knowing violation of law or that he or she personally gained in fact a
financial profit or other advantage to which he or she was not legally
entitled or that his or her acts violated Section 719 of the New York
Business Corporation Law; or (ii) the liability of a director for any act
or omission prior to the adoption of this Article NINTH by the
shareholders of the Corporation.
4. The manner in which this restatement of the Certificate of
Incorporation was authorized was by a resolution of the Board of Directors of
the corporation.
<PAGE>
In Witness Whereof, we have signed and verified this Restated Certificate of
Incorporation of American Telephone and Telegraph Company this 9th day of
January 1989.
/s/ S. L. Prendergast
---------------------------------
By: S. L. Prendergast
Corporate Vice President
and Treasurer
/s/ R. E. Scannell
---------------------------------
By: R. E. Scannell
Corporate Vice President - Law
and Secretary
<PAGE>
State of New York
ss.:
County of New York
R. E. Scannell, being duly sworn, deposes and says that he is the
Corporate Vice President - Law and Secretary of American Telephone and
Telegraph Company, that he signed the foregoing Certificate as Corporate Vice
President - Law and Secretary of such corporation, that he knows the contents
thereof, and that the statements therein contained are true.
/s/ R. E. Scannell
----------------------------------
By: R. E. Scannell
Corporate Vice President - Law
and Secretary
Subscribed and sworn to before me this 9th day of January 1989.
Janet M. Kirpan
Notary Public
Janet M. Kirpan
Notary Public, State of New York
No. 31-4624682
Qualified in New York County
Commission expires March 30, 1990
<PAGE>
CERTIFICATE OF CORRECTION OF THE RESTATED
CERTIFICATE OF INCORPORATION OF
AMERICAN TELEPHONE AND TELEGRAPH COMPANY
UNDER SECTION 105 OF THE
BUSINESS CORPORATION LAW
We, the undersigned, Robert E. Scannell and B. Ward White, being
respectively the Corporate Vice President - Law and Secretary and the Assistant
Secretary of American Telephone and Telegraph Company for the purpose of
correcting the date appearing in the citation to `An Act to provide for the
incorporation and regulation of telegraph companies,' passed April 12, 1848
(stated correctly as 1948) which appears on the face of the Restated
Certificate of Incorporation of American Telephone and Telegraph Company under
Section 807 of the Business Corporation Law hereby certify:
1. The name of the corporation is American Telephone and Telegraph
Company.
2. The Restated Certificate of Incorporation of American Telephone and
Telegraph Company under Section 807 of the Business Corporation Law was filed
by the Department of State on January 10, 1989.
3. The last paragraph of the first page of the certificate is corrected to
read as follows:
"We do hereby associate ourselves together for the purpose of
constructing, buying, owning, leasing, or otherwise obtaining, lines of
electric telegraph partly within and partly beyond the limits of the State
of New York, and of equipping, using, operating, or otherwise maintaining,
the same; and of becoming a body politic and corporate under and by virtue
of the provisions of an act of the Legislature of the State of New York
entitled `An Act to provide for the incorporation and regulation of
telegraph companies.' passed April 12, 1848, and the various acts
amendatory thereof or supplemental thereto; and of having and exercising
all and every of the powers, privileges, franchises and immunities in and
by said acts conferred. And in pursuance of the requirements of the
various acts aforesaid, and for the purposes above set forth, we do hereby
declare and certify as follows,
<PAGE>
IN WITNESS WHEREOF, we have signed and verified this certificate on the
31st day of May, 1989 and we affirm the statements contained herein as true
under penalties of perjury.
AMERICAN TELEPHONE AND TELEGRAPH COMPANY
/s/ Robert E. Scannell
-----------------------------------------
By: Robert E. Scannell
Corporate Vice President - Law
and Secretary
/s/ B. Ward White
-----------------------------------------
By: B. Ward White
Assistant Secretary
<PAGE>
CERTIFICATE OF CHANGE OF THE RESTATED
CERTIFICATE OF INCORPORATION OF
AMERICAN TELEPHONE AND TELEGRAPH COMPANY
UNDER SECTION 805-A OF THE
BUSINESS CORPORATION LAW
1. The name of the corporation is "American Telephone and Telegraph
Company."
2. The Certificate of Incorporation was filed in the office of the
Secretary of State of the State of New York on March 3, 1885.
3. The change in the Certificate of Incorporation effected by this
Certificate of Change is as follows:
To change the post office address to which the Secretary of State of
the State of New York shall mail a copy of any process against the
corporation served upon said Secretary of State.
4. To accomplish the foregoing change, Article SEVENTH of the Certificate
of Incorporation, relating to service of process, is hereby stricken out in its
entirety, and the following new Article SEVENTH is substituted in lieu thereof:
"SEVENTH. The Secretary of State of the State of New York is
designated as agent of the corporation upon whom process against it may be
served. The post office address to which the Secretary of State shall mail
a copy of any process served upon him as agent of the corporation is
American Telephone and Telegraph Company, 32 Avenue of the Americas, New
York, New York, 10013.
5. The manner in which this Certificate of Change was authorized was by
resolution of the Board of Directors of the corporation.
<PAGE>
IN WITNESS WHEREOF, we have signed and verified this Certificate of Change
of American Telephone and Telegraph Company this 16th day of March 1992.
/s/ S. L. Prendergast
------------------------------------
By: S. L. Prendergast
Corporate Vice President
and Treasurer
/s/ R. E. Scannell
------------------------------------
By: R. E. Scannell
Vice President - Law and Secretary
<PAGE>
State of New York
ss.:
County of New York
R. E. Scannell, being duly sworn, deposes and says that he is the Vice
President - Law and Secretary of American Telephone and Telegraph Company, that
he signed the foregoing Certificate as Vice President - Law and Secretary of
such corporation, that he knows the contents thereof, and that the statements
therein contained are true.
/s/ R. E. Scannell
--------------------------------------
By: R. E. Scannell
Vice President - Law and Secretary
Subscribed and sworn to before
me this 16th day of March 1992.
Janet M. Kirpan
Notary Public
Janet M. Kirpan
Notary Public, State of New York
No. 31-4624682
Qualified in New York County
Commission expires March 30, 1994
<PAGE>
CERTIFICATE OF AMENDMENT OF THE RESTATED
CERTIFICATE OF INCORPORATION OF
AMERICAN TELEPHONE AND TELEGRAPH COMPANY
UNDER SECTION 805 OF THE
BUSINESS CORPORATION LAW
We, the undersigned, being a Vice President and Secretary, respectively,
of American Telephone and Telegraph Company, do hereby certify as follows:
1. The name of the corporation is "American Telephone and Telegraph
Company."
2. The Certificate of Incorporation of the corporation was filed in the
office of the Secretary of State of the State of New York on March 3, 1885.
3. Said Certificate of Incorporation is amended to increase the authorized
number of common shares of the capital stock of the corporation having a par
value of $1 from 1,500,000,000 to 2,000,000,000 shares.
4. To effect the foregoing, the first paragraph of Article THIRD of said
Certificate of Incorporation, relating to the aggregate number of shares the
corporation is authorized to issue, the par value thereof, and the classes into
which the shares are divided is hereby stricken out in its entirety, and the
following new first paragraph of Article THIRD is substituted in lieu thereof:
"THIRD. The aggregate number of shares which the corporation is
authorized to issue is 2,100,000,000 shares, consisting of 2,000,000,000
common shares having a par value of $1 per share and 100,000,000 preferred
shares having a par value of $1 per share.
5. The manner in which the foregoing amendment of said Certificate of
Incorporation was authorized was by vote of the holders of a majority of all
outstanding shares of the corporation entitled to vote thereon at a meeting of
shareholders, subsequent to the unanimous vote of the Board of Directors.
<PAGE>
IN WITNESS WHEREOF, we have signed and verified this Certificate of
Amendment of said Certificate of Incorporation of American Telephone and
Telegraph Company this 13th day of May, 1992.
/s/ S. L. Prendergast
-------------------------------------
By: S. L. Prendergast
Vice President and Treasurer
/s/ R. E. Scannell
------------------------------------
By: R. E. Scannell
Vice President - Law and Secretary
<PAGE>
Certificate of Amendment of the Certificate of Incorporation
of
American Telephone and Telegraph Company
Under Section 805 of the Business Corporation Law
We, the undersigned, being a Vice President and an Assistant Secretary
respectively, of American Telephone and Telegraph Company, do hereby certify as
follows:
FIRST: The name of the corporation is American Telephone and Telegraph
Company.
SECOND: The Certificate of Incorporation of the corporation was filed by
the Department of State on March 3, 1885.
THIRD: The Certificate of Incorporation of the corporation is hereby
amended by changing the name of the corporation to AT&T Corp.
FOURTH: To accomplish the foregoing amendment, Article FIRST of the
Certificate of Incorporation of the corporation is amended to read as follows:
"FIRST. The name of the corporation is AT&T Corp."
FIFTH: The manner in which the foregoing amendment of said Certificate of
Incorporation of the corporation was authorized was by vote of the holders of a
majority of all outstanding shares of the corporation entitled to vote thereon
at a meeting of shareholders, subsequent to the unanimous vote of the Board of
Directors.
IN WITNESS WHEREOF, we have subscribed this document on April 20, 1994 and
do hereby affirm, under the penalties of perjury, that the statements contained
therein have been examined by us and are true and correct.
/s/ Jim G. Kilpatric
---------------------------------
By: Jim G. Kilpatric
Senior Vice President - Law
/s/ Robert A. Maynes
---------------------------------
By: Robert A. Maynes
Assistant Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION
OF
AT&T CORP.
UNDER SECTION 805 OF THE
BUSINESS CORPORATION LAW
We, the undersigned, being a Vice President and Assistant Secretary,
respectively, of AT&T Corp., do hereby certify as follows:
1. The name of the corporation is AT&T Corp. The name under which the
Corporation was formed is American Telephone and Telegraph Company.
2. The Certificate of Incorporation of the corporation was filed in the
office of the Secretary of State of the State of New York on March 3, 1885.
3. Said Certificate of Incorporation is amended to increase the authorized
number of common shares of the capital stock of the corporation having a par
value of $1 from 2,000,000,000 shares to 6,000,000,000 shares.
4. To effect the foregoing, the first paragraph of Article THIRD of said
Certificate of Incorporation, relating to the aggregate number of shares the
corporation is authorized to issue, the par value thereof, and the classes into
which the shares are divided is hereby stricken out in its entirety, and the
following new first paragraph of Article THIRD is substituted in lieu thereof:
"THIRD. The aggregate number of shares which the corporation is
authorized to issue is 6,100,000,000 shares, consisting of 6,000,000,000
common shares having a par value of $1 per share and 100,000,000 preferred
shares having a par value of $1 per share.
5. The manner in which the foregoing amendment of said Certificate of
Incorporation was authorized was by vote of the holders of a majority of all
outstanding shares of the corporation entitled to vote thereon at a meeting of
shareholders, subsequent to the unanimous vote of the Board of Directors.
<PAGE>
IN WITNESS WHEREOF, we have signed this Certificate of Amendment of said
Certificate of Incorporation of AT&T Corp. this 22th day of May, 1998 and we
affirm the statements contained therein as true under penalties of perjury.
/s/ Marilyn J. Wasser
-----------------------------
M. J. Wasser
Vice President-Law and
Secretary
/s/ Robert A. Maynes
-----------------------------
R. A. Maynes
Assistant Secretary
<PAGE>
Certificate of Amendment of the Certificate of Incorporation
Under Section 805 of the Business Corporation Law
We, the undersigned, being a Vice President and an Assistant Secretary
respectively, of AT&T Corp., do hereby certify as follows:
FIRST: The name of the corporation is AT&T Corp.
SECOND: The Certificate of Incorporation of the corporation was filed
by the Department of State on March 3, 1885 under the name American
Telephone and Telegraph Company.
THIRD: (a) The Certificate of Incorporation of the corporation is
hereby amended to create two new classes of common stock, Class A Liberty
Media Group Common Stock and Class B Liberty Media Group Common Stock,
each having the number, designation, relative rights, preferences, and
limitations as set forth herein.
(b) To effect the foregoing, Article THIRD is hereby amended and
restated in its entirety as follows:
ARTICLE THIRD
CAPITAL STOCK
PART A--AUTHORIZED SHARES
The aggregate number of shares which the corporation is authorized to
issue is eight billion eight hundred fifty million (8,850,000,000) shares,
consisting of one hundred million (100,000,000) preferred shares having a par
value of $1.00 per share ("Preferred Stock") and eight billion seven hundred
fifty million (8,750,000,000) common shares, of which six billion
(6,000,000,000) common shares shall be Common Stock having a par value of $1.00
per share ("Common Stock"), two billion five hundred million (2,500,000,000)
common shares shall be Class A Liberty Media Group Common Stock having a par
value of $1.00 per share ("Class A Liberty Media Group Common Stock") and two
hundred fifty million (250,000,000) common shares shall be Class B Liberty
Media Group Common Stock having a par value of $1.00 per share ("Class B
Liberty Media Group Common Stock"). The Class A Liberty Media Group Common
Stock and the Class B Liberty Media Group Common Stock are collectively
referred to herein as the "Liberty Media Group Common Stock".
The authorized shares of Class B Liberty Media Group Common Stock will
only be issued (i) pursuant to the Agreement and Plan of Restructuring and
Merger, dated June 23, 1998 (the "Merger Agreement"), among
Tele-Communications, Inc., Italy Merger Corp. and the corporation, (ii) upon
conversion, exercise or exchange of Pre-Merger Convertible Securities, (iii) in
a subdivision (by stock split or otherwise) of outstanding shares of Class B
Liberty Media Group Common Stock, or (iv) as a stock dividend or share
distribution (as defined in paragraph 4 of Part B of this Article Third).
PART B--COMMON STOCK AND LIBERTY GROUP COMMON STOCK
Each share of Common Stock, each share of Class A Liberty Media Group
Common Stock and each share of Class B Liberty Media Group Common Stock shall,
except as otherwise provided in this Article Third, be identical in all
respects and shall have equal rights, powers and privileges.
<PAGE>
1. Voting Rights.
(a) Holders of Common Stock shall be entitled to one vote for each share
of such stock held, holders of Class A Liberty Media Group Common Stock shall
be entitled to one-tenth of a vote for each share of such stock held, and
holders of Class B Liberty Media Group Common Stock shall be entitled to one
vote for each share of such stock held, on all matters presented to such
shareholders.
(b) Except as may otherwise be required by the laws of the State of New
York or, with respect to additional or special voting rights (which may
include, without limitation, rights of any such holders of any such class or
series to elect one or more directors voting separately as a class) of any
class or series of Preferred Stock or any other class of common shares, in the
Certificate of Incorporation of the corporation as the same may be amended from
time to time (this "Certificate") (including the terms of any class or series
of Preferred Stock and any resolution or resolutions providing for the
establishment of such class or series pursuant to authority vested in the Board
of Directors by this Certificate and the terms of any other class of common
shares), the holders of shares of Common Stock, the holders of shares of each
other class of common shares, if any, entitled to vote thereon, the holders of
shares of Class A Liberty Media Group Common Stock and the holders of shares of
Class B Liberty Media Group Common Stock, and the holders of shares of each
class or series of Preferred Stock, if any, entitled to vote thereon, shall
vote as one class with respect to all matters to be voted on by shareholders of
the corporation, and no separate vote or consent of the holders of shares of
Common Stock, the holders of shares of Class A Liberty Media Group Common
Stock, the holders of shares of Class B Liberty Media Group Common Stock or the
holders of shares of any such class of common shares or any such class or
series of Preferred Stock shall be required for the approval of any such
matter, except that:
(i) any amendment, alteration or repeal of any of the provisions of
this Certificate which would (x) increase or decrease the aggregate number
of authorized shares of Liberty Media Group Common Stock, (y) increase or
decrease the par value of the shares of Liberty Media Group Common Stock
or (z) alter or change the powers, preferences, privileges or special
rights of the shares of Liberty Media Group Common Stock so as to affect
them adversely shall require the approval of both (A) the holders of a
majority of the combined voting power of the shares of Common Stock,
Liberty Media Group Common Stock and any other class of common shares
entitled to vote with respect to such matter and any class or series of
Preferred Stock entitled to vote with respect to such matter then
outstanding, voting together as a single class, and (B) the holders of a
majority of the combined voting power of the shares of Liberty Media Group
Common Stock, voting separately as a class (without any vote of the
holders of the Common Stock, any other class of common shares or any class
or series of Preferred Stock of the corporation);
(ii) a Covered Disposition shall require, in addition to any other
approval that may be required pursuant to law or this Certificate, the
approval of the holders of a majority of the combined voting power of the
shares of Liberty Media Group Common Stock, voting separately as a class;
and
(iii) any merger, consolidation, combination, binding share exchange,
reclassification, reorganization or other transaction in or pursuant to
which the Liberty Media Group Common Stock is converted, reclassified or
changed into or otherwise exchanged for any consideration (other than a
conversion described in paragraph 2 of this Part B of this Article Third
or a redemption described in paragraph 5 of this part B of this Article
Third) shall be subject to approval by both (x) the holders of a majority
of the combined voting power of the shares of Common Stock, Liberty Media
Group Common Stock, any other class of common shares entitled
<PAGE>
to vote with respect to such matter and any class or series of Preferred
Stock entitled to vote with respect to such matter then outstanding,
voting together as a single class, and (y) the holders of a majority of
the combined voting power of the shares of Liberty Media Group Common
Stock then outstanding, voting separately as a class (without any vote of
the holders of the Common Stock, any other class of common shares or any
class or series of Preferred Stock of the corporation), unless each of the
following requirements is met (in which event the approval set forth in
subclause (y) of this clause (iii) shall not be required): (A) the
consideration into which the Liberty Media Group Common Stock is
converted, reclassified or changed or for which it is exchanged in such
transaction includes shares of a class of the common stock of the
surviving, resulting or acquiring corporation in such transaction or of
the corporation, if applicable, (it being understood that if the Common
Stock will be converted in such transaction into any class or series of
common shares of any Person, then the term "acquiring corporation" shall
mean such Person if such Person directly or indirectly owns the assets
comprising the Liberty Media Group after giving effect to such
transaction), (B) such class of common stock is intended to reflect the
separate performance of the businesses, assets and liabilities comprising
the Liberty Media Group (as it existed prior to such transaction and no
other material businesses, assets or liabilities) and has powers,
preferences, privileges and special rights equivalent to those of the
shares of Liberty Media Group Common Stock, (C) such businesses, assets
and liabilities comprising the Liberty Media Group are owned directly or
indirectly by the issuer of the shares of such class of common stock and
if prior to such transaction all of the businesses, assets and liabilities
comprising the Liberty Media Group were held, directly or indirectly, by
one or more Qualifying Subsidiaries of the corporation (or by Subsidiaries
that are not held directly by the corporation but would be Qualifying
Subsidiaries if they were held directly by the corporation) that hold no
other material assets or liabilities, then immediately following such
transaction, such businesses, assets and liabilities comprising the
Liberty Media Group are owned, directly or indirectly, by one or more
Qualifying Subsidiaries of the issuer of the shares of such class of
common stock (or by Subsidiaries of such issuer that are not held directly
by such issuer but would be Qualifying Subsidiaries if they were held
directly by such issuer) that hold no other material assets or
liabilities, and (D) the shares of such class of common stock immediately
after such transaction are held only by Persons that were holders of
shares of Liberty Media Group Common Stock (or Convertible Securities that
were convertible into or exercisable or exchangeable for Liberty Media
Group Common Stock) immediately prior to such transaction.
(c) If the corporation shall in any manner subdivide (by stock split or
otherwise) or combine (by reverse stock split or otherwise) the outstanding
shares of Common Stock or Liberty Media Group Common Stock, or pay a stock
dividend in shares of any class to holders of that class or shall otherwise
effect a share distribution (as defined in paragraph 4 of this Part B of this
Article Third) of Common Stock or Liberty Media Group Common Stock, the per
share voting rights specified in paragraph 1(a) of this Part B of this Article
Third of Liberty Media Group Common Stock relative to Common Stock shall be
appropriately adjusted so as to avoid any dilution in the aggregate voting
rights of any class.
2. Conversion Rights of Liberty Media Group Common Stock.
Each share of Class B Liberty Media Group Common Stock shall be
convertible, at the option of the holder thereof, into one share of Class A
Liberty Media Group Common Stock. Any such conversion may be effected by any
holder of Class B Liberty Media Group Common Stock by surrendering such
holder's certificate or certificates for the Class B Liberty Media Group Common
Stock to be converted, duly endorsed, at the office of the corporation or any
transfer agent for the Class B Liberty Media Group Common Stock, together with
a written notice to the corporation at such office that such holder elects to
<PAGE>
convert all or a specified number of shares of Class B Liberty Media Group
Common Stock represented by such certificate and stating the name or names in
which such holder desires the certificate or certificates for Class A Liberty
Media Group Common Stock to be issued. If so required by the corporation, any
certificate for shares surrendered for conversion shall be accompanied by
instruments of transfer, in form satisfactory to the corporation, duly executed
by the holder of such shares or the duly authorized representative of such
holder. Promptly thereafter, the corporation shall issue and deliver to such
holder or such holder's nominee or nominees, a certificate or certificates for
the number of shares of Class A Liberty Media Group Common Stock to which such
holder shall be entitled as herein provided. Such conversion shall be deemed to
have been made at the close of business on the date of receipt by the
corporation or any such transfer agent of the certificate or certificates,
notice and, if required, instruments of transfer referred to above, and the
person or persons entitled to receive the Class A Liberty Media Group Common
Stock issuable on such conversion shall be treated for all purposes as the
record holder or holders of such Class A Liberty Media Group Common Stock on
that date. A number of shares of Class A Liberty Media Group Common Stock equal
to the number of shares of Class B Liberty Media Group Common Stock outstanding
from time to time shall be set aside and reserved for issuance upon conversion
of shares of Class B Liberty Media Group Common Stock. Shares of Class A
Liberty Media Group Common Stock shall not be convertible into shares of Class
B Liberty Media Group Common Stock.
3. Dividends.
(a) Dividends on Common Stock. Dividends on the Common Stock may be
declared and paid only to the extent of (i) the assets of the corporation
legally available therefor minus (ii) the Liberty Media Group Available
Dividend Amount (such amount, the "Common Stock Available Dividend Amount").
(b) Dividends on Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock. Dividends on the Class A Liberty Media Group
Common Stock and the Class B Liberty Media Group Common Stock may be declared
and paid only out of the lesser of (i) assets of the corporation legally
available therefor and (ii) the Liberty Media Group Available Dividend Amount.
Subject to paragraph 4 of this Part B of this Article Third, whenever a
dividend is paid to the holders of Class A Liberty Media Group Common Stock,
the corporation shall also pay to the holders of Class B Liberty Media Group
Common Stock a dividend per share equal to the dividend per share paid to the
holders of Class A Liberty Media Group Common Stock, and whenever a dividend is
paid to the holders of Class B Liberty Media Group Common Stock, the
corporation shall also pay to the holders of Class A Liberty Media Group Common
Stock a dividend per share equal to the dividend per share paid to the holders
of Class B Liberty Media Group Common Stock.
(c) Discrimination Between or Among Classes of Common Shares. The Board of
Directors, subject to the provisions of paragraphs 3(a) and 3(b) of this Part B
of this Article Third, shall have the sole authority and discretion to declare
and pay dividends on (i) the Common Stock, (ii) any other class of common
shares or (iii) the Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock, in equal or unequal amounts (including
declaring and paying no dividends on the Liberty Media Group Common Stock while
declaring and paying dividends on the Common Stock or any other class of common
shares and declaring and paying no dividends on the Common Stock or any other
class of common shares while declaring and paying dividends on the Liberty
Media Group Common Stock), notwithstanding the relationship between the Common
Stock Available Dividend Amount and the Liberty Media Group Available Dividend
Amount, the respective amounts of prior dividends declared on, or the
liquidation rights of, the Common Stock, any other class of common
<PAGE>
shares or the Class A Liberty Media Group Common Stock and the Class B Liberty
Media Group Common Stock, or any other factor.
4. Share Distributions.
The corporation may declare and pay a distribution consisting of shares of
Common Stock, Class A Liberty Media Group Common Stock, Class B Liberty Media
Group Common Stock or any other securities of the corporation or any other
Person (hereinafter sometimes called a "share distribution") to holders of the
Common Stock, Class A Liberty Media Group Common Stock or Class B Liberty Media
Group Common Stock only in accordance with the provisions of this paragraph 4
of this Part B of this Article Third.
(a) Distributions on Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock. If at any time a share distribution is to be
made with respect to the Class A Liberty Media Group Common Stock or Class B
Liberty Media Group Common Stock, such share distribution may be declared and
paid only as follows (or as permitted by paragraph 5 of this Part B of this
Article Third with respect to the redemptions and other distributions referred
to therein):
(i) a share distribution consisting of shares of Class A Liberty
Media Group Common Stock (or Convertible Securities convertible into or
exercisable or exchangeable for shares of Class A Liberty Media Group
Common Stock) to holders of Class A Liberty Media Group Common Stock and
Class B Liberty Media Group Common Stock, on an equal per share basis; or
consisting of shares of Class A Liberty Media Group Common Stock (or
Convertible Securities convertible into or exercisable or exchangeable for
shares of Class A Liberty Media Group Common Stock) to holders of Class A
Liberty Media Group Common Stock and, on an equal per share basis, shares
of Class B Liberty Media Group Common Stock (or like Convertible
Securities convertible into or exercisable or exchangeable for shares of
Class B Liberty Media Group Common Stock) to holders of Class B Liberty
Media Group Common Stock;
(ii) a share distribution consisting of shares of Common Stock or any
other class of common shares of the corporation (other than Liberty Media
Group Common Stock), or Convertible Securities convertible into or
exercisable or exchangeable for shares of Common Stock or any other class
of common shares of the corporation (other than Liberty Media Group Common
Stock), to holders of Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock, on an equal per share basis;
(iii) a share distribution consisting of any class or series of
securities of the corporation or any other Person other than Class A
Liberty Media Group Common Stock, Class B Liberty Media Group Common
Stock, Common Stock or any other class of common shares of the corporation
(or Convertible Securities convertible into or exercisable or exchangeable
for shares of Class A Liberty Media Group Common Stock, Class B Liberty
Media Group Common Stock or Common Stock or any other class of common
shares of the corporation), (x) if a single class or series of securities
is to be distributed, on the basis of a distribution of identical
securities, on an equal per share basis, to holders of Class A Liberty
Media Group Common Stock and Class B Liberty Media Group Common Stock and
(y) if more than one class or series of securities is to be distributed,
then, if and to the extent practicable, in accordance with the following
provisions of this clause (y) and, otherwise, in accordance with clause
(x) above: on the basis of a distribution of one class or series of
securities to holders of Class A Liberty Media Group Common Stock
<PAGE>
and another class or series of securities to holders of Class B Liberty
Media Group Common Stock, provided that the securities so distributed
(and, if the distribution consists of Convertible Securities, the
securities into which such Convertible Securities are convertible or for
which they are exercisable or exchangeable) do not differ in any respect
other than their relative voting rights and related differences in
designation, conversion, redemption and share distribution provisions,
with holders of shares of Class B Liberty Media Group Common Stock
receiving the class or series having the higher relative voting rights
(without regard to whether such rights differ to a greater or lesser
extent than the corresponding differences in voting rights, designation,
conversion, redemption and share distribution provisions between the Class
A Liberty Media Group Common Stock and the Class B Liberty Media Group
Common Stock), provided that if the securities so distributed constitute
capital stock of a Subsidiary of the corporation, such rights shall not
differ to a greater extent than the corresponding differences in voting
rights, designation, conversion, redemption and share distribution
provisions between the Class A Liberty Media Group Common Stock and the
Class B Liberty Media Group Common Stock, and provided in each case that
such distribution is otherwise made on an equal per share basis.
The corporation shall not reclassify, subdivide or combine the Class A
Liberty Media Group Common Stock without reclassifying, subdividing or
combining the Class B Liberty Media Group Common Stock, on an equal per share
basis, and the corporation shall not reclassify, subdivide or combine the Class
B Liberty Media Group Common Stock without reclassifying, subdividing or
combining the Class A Liberty Media Group Common Stock, on an equal per share
basis. The corporation shall not effect a share distribution to the holders of
Liberty Media Group Common Stock of any class or series of securities of a
Subsidiary of the corporation or any other Person unless such share
distribution is tax-free to the holders of Liberty Media Group Common Stock
(except with respect to cash received by such holders in lieu of fractional
shares).
(b) Distributions on Common Stock. The corporation shall not declare and
pay a share distribution with respect to the Common Stock or any other class of
common shares (other than the Liberty Media Group Common Stock) consisting of
Class A Liberty Media Group Common Stock, Class B Liberty Media Group Common
Stock, any class or series of Preferred Stock attributed to the Liberty Media
Group or securities of any Person included in the Liberty Media Group (or
Convertible Securities convertible into or exercisable or exchangeable for
shares of Class A Liberty Media Group Common Stock, Class B Liberty Media Group
Common Stock, any such class or series of Preferred Stock or securities of any
such Person). Except as set forth in the immediately preceding sentence, the
corporation may declare and pay a share distribution to holders of Common Stock
or any other class of common shares (other than Liberty Media Group Common
Stock) consisting of any securities of the corporation, any Subsidiary of the
corporation, or any other Person, including without limitation a share
distribution consisting of shares of any class or series of Preferred Stock or
shares of Common Stock or any other class of common shares (other than Liberty
Media Group Common Stock) (or Convertible Securities convertible into or
exercisable or exchangeable for shares of any class or series of Preferred
Stock or shares of Common Stock or any other class of common shares (other than
Liberty Media Group Common Stock)).
5. Redemption and Other Provisions Relating to the Liberty Media Group Common
Stock.
(a) Redemption in Exchange for Stock of Qualifying Subsidiaries. At any
time at which all of the assets and liabilities included in the Liberty Media
Group are held directly or indirectly by one or more Qualifying Subsidiaries of
the corporation that hold no other material assets or liabilities (the
<PAGE>
"Liberty Media Group Subsidiaries"), the Board of Directors may, subject to the
availability of assets of the corporation legally available therefor, redeem,
on a pro rata basis, all of the outstanding shares of Class A Liberty Media
Group Common Stock and Class B Liberty Media Group Common Stock in exchange for
an aggregate number of outstanding fully paid and nonassessable shares of
common stock of a Liberty Media Group Subsidiary that is the beneficial owner
of all other Liberty Media Group Subsidiaries (or, if applicable, of each
Liberty Media Group Subsidiary that is not a Subsidiary of one or more other
Liberty Media Group Subsidiaries) equal to the number of outstanding shares of
common stock of such Liberty Media Group Subsidiary (or Liberty Media Group
Subsidiaries, as the case may be) held by the corporation; provided that no
such redemption pursuant to this paragraph 5(a) of this Part B of this Article
Third may occur unless the redemption is tax-free to the holders of Liberty
Media Group Common Stock (except with respect to cash received by such holders
in lieu of fractional shares). Any such redemption shall occur on a Redemption
Date set forth in a notice to holders of Class A Liberty Media Group Common
Stock and Class B Liberty Media Group Common Stock and Convertible Securities
convertible into or exercisable or exchangeable for shares of either such
series (unless provision for notice is otherwise made pursuant to the terms of
such Convertible Securities) pursuant to paragraph 5(d)(v) of this Part B of
this Article Third. In effecting such a redemption, the corporation shall (i)
if and to the extent practicable, redeem shares of Class A Liberty Media Group
Common Stock and Class B Liberty Media Group Common Stock in exchange for
shares of separate classes or series of common stock of each Liberty Media
Group Subsidiary with relative voting rights and related differences in
designation, conversion, redemption and share distribution provisions not
greater than the corresponding differences in voting rights, designation,
conversion, redemption and share distribution provisions between the Class A
Liberty Media Group Common Stock and Class B Liberty Media Group Common Stock,
with holders of shares of Class B Liberty Media Group Common Stock receiving
the class or series having the higher relative voting rights, and (ii) to the
extent redemption in accordance with clause (i) above is not practicable,
redeem shares of Class A Liberty Media Group Common Stock and Class B Liberty
Media Group Common Stock in exchange for shares of a single class of common
stock of each Liberty Media Group Subsidiary without distinction between the
shares distributed to the holders of the Class A Liberty Media Group Common
Stock and Class B Liberty Media Group Common Stock.
(b) Mandatory Dividend or Redemption in Case of Disposition of Liberty
Media Group Assets. In the event of the Disposition, in one transaction or a
series of related transactions, by the corporation and its subsidiaries of all
or substantially all of the properties and assets of the Liberty Media Group to
one or more Persons or groups (other than (w) in connection with the
Disposition by the corporation of all of the corporation's properties and
assets in one transaction or a series of related transactions in connection
with the liquidation, dissolution or winding up of the corporation within the
meaning of paragraph 6 of this Part B of this Article Third, (x) a dividend,
other distribution or redemption in accordance with any provision of paragraph
3, paragraph 4, paragraph 5(a) or paragraph 6 of this Part B of this Article
Third, (y) to any Person or group which the Liberty Media Group, directly or
indirectly, after giving effect to the Disposition, controls and which is
included in the Liberty Media Group or (z) in connection with a Related
Business Transaction), the corporation shall, on or prior to the 85th Trading
Day following the consummation of such Disposition, either:
(i) subject to paragraph 3(b) of this Part B of this Article Third,
declare and pay a dividend in cash and/or in securities or other property
(determined as provided below) to the holders of the outstanding shares of
Class A Liberty Media Group Common Stock and Class B Liberty Media Group
Common Stock equally on a share for share basis (subject to the last
sentence of this paragraph 5(b) of this Part B of this Article Third), in
an aggregate amount equal to the Liberty Media Group Net Proceeds of such
Disposition (provided that if such Disposition involves all (not merely
substantially all) of the properties and assets of the Liberty Media
<PAGE>
Group, then the aggregate amount of such dividend shall equal the product
of the Liberty Media Group Full Dilution Fraction and the Liberty Media
Group Net Proceeds of such Disposition and the difference between the
aggregate amount of such dividend and such Liberty Media Group Net
Proceeds shall be reserved by the corporation for payment or delivery to
holders of Pre-Merger Convertible Securities on conversion, exercise or
exchange thereof); or
(ii) provided that there are assets of the corporation legally
available therefor and to the extent the Liberty Media Group Available
Dividend Amount would have been sufficient to pay a dividend in lieu
thereof pursuant to clause (i) of this paragraph 5(b) of this Part B of
this Article Third, then:
(A) if such Disposition involves all (not merely substantially
all) of the properties and assets of the Liberty Media Group, redeem
all outstanding shares of Class A Liberty Media Group Common Stock
and Class B Liberty Media Group Common Stock in exchange for cash
and/or securities or other property (determined as provided below) in
an aggregate amount equal to the product of the Liberty Media Group
Full Dilution Fraction and the Liberty Media Group Net Proceeds, such
aggregate amount to be allocated (subject to the last sentence of
this paragraph 5(b) of this Part B of this Article Third) to shares
of Class A Liberty Media Group Common Stock and Class B Liberty Media
Group Common Stock in the ratio of the number of shares of each such
series outstanding (so that the amount of consideration paid for the
redemption of each share of Class A Liberty Media Group Common Stock
and each share of Class B Liberty Media Group Common Stock is the
same); or
(B) if such Disposition involves substantially all (but not all)
of the properties and assets of the Liberty Media Group, apply an
aggregate amount of cash and/or securities or other property
(determined as provided below) equal to the Liberty Media Group Net
Proceeds to the redemption of outstanding shares of Class A Liberty
Media Group Common Stock and Class B Liberty Media Group Common
Stock, such aggregate amount to be allocated (subject to the last
sentence of this paragraph 5(b) of this Part B of this Article Third)
to shares of Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock in the ratio of the number of shares
of each such series outstanding, and the number of shares of each
such series to be redeemed to equal the lesser of (x) the whole
number nearest the number determined by dividing the aggregate amount
so allocated to the redemption of such series by the average Market
Value of one share of Class A Liberty Media Group Common Stock during
the ten-Trading Day period beginning on the 16th Trading Day
following the consummation of such Disposition and (y) the number of
shares of such series outstanding (so that the amount of
consideration paid for the redemption of each share of Class A
Liberty Media Group Common Stock and each share of Class B Liberty
Media Group Common Stock is the same);
such redemption to be effected in accordance with the applicable provisions of
paragraph 5(d) of this Part B of this Article Third;
For purposes of this paragraph 5(b):
(x) as of any date, "substantially all of the properties and assets of the
Liberty Media Group" shall mean a portion of such properties and assets that
represents at least 80% of the then-current market
<PAGE>
value (as determined by the Board of Directors) of the properties and assets of
the Liberty Media Group as of such date;
(y) in the case of a Disposition of properties and assets in a series of
related transactions, such Disposition shall not be deemed to have been
consummated until the consummation of the last of such transactions; and
(z) the corporation shall pay the dividend or redemption price referred to
in clause (i) or (ii) of this paragraph 5(b) of this Part B of this Article
Third in the same form as the proceeds of the Disposition were received. If the
dividend or redemption price is paid in the form of securities of an issuer
other than the corporation, the corporation shall (1) if more than one class or
series of securities is to be distributed, if and to the extent practicable,
pay the dividend or redemption price in the form of separate classes or series
of securities, with one class or series of such securities to holders of Class
A Liberty Media Group Common Stock and another class or series of securities to
holders of Class B Liberty Media Group Common Stock, provided that such
securities (and, if such securities are convertible into or exercisable or
exchangeable for shares of another class or series of securities, the
securities so issuable upon such conversion, exercise or exchange) do not
differ in any respect other than their relative voting rights and related
differences in designation, conversion, redemption and share distribution
provisions, with holders of shares of Class B Liberty Media Group Common Stock
receiving the class or series having the higher relative voting rights (without
regard to whether such rights differ to a greater or lesser extent than the
corresponding differences in voting rights, designation, conversion, redemption
and share distribution provisions between the Class A Liberty Media Group
Common Stock and the Class B Liberty Media Group Common Stock), provided that
if such securities constitute capital stock of a Subsidiary of the corporation,
such rights shall not differ to a greater extent than the corresponding
differences in voting rights, designation, conversion, redemption and share
distribution provisions between the Class A Liberty Media Group Common Stock
and Class B Liberty Media Group Common Stock, and otherwise such securities
shall be distributed on an equal per share basis, and (2) otherwise pay the
dividend or redemption price in the form of a single class of securities
without distinction between the shares received by the holders of Class A
Liberty Media Group Common Stock and Class B Liberty Media Group Common Stock.
(c) Certain Provisions Respecting Convertible Securities. Unless the
provisions of any class or series of Pre-Merger Convertible Securities provide
specifically to the contrary, after any Redemption Date on which all
outstanding shares of Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock were redeemed, any share of Class A Liberty
Media Group Common Stock or Class B Liberty Media Group Common Stock that is
issued on conversion, exercise or exchange of any Pre-Merger Convertible
Securities shall, immediately upon issuance pursuant to such conversion,
exercise or exchange and without any notice or any other action on the part of
the corporation or its Board of Directors or the holder of such share of Class
A Liberty Media Group Common Stock or Class B Liberty Media Group Common Stock,
be redeemed in exchange for the kind and amount of shares of capital stock,
cash and/or other securities or property that a holder of such Pre-Merger
Convertible Securities would have been entitled to receive pursuant to the
terms of such securities had such terms provided that the conversion, exercise
or exchange privilege in effect immediately prior to any such redemption of all
outstanding shares of Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock would be adjusted so that the holder of any
such Pre-Merger Convertible Securities thereafter surrendered for conversion,
exercise or exchange would be entitled to receive the kind and amount of shares
of capital stock, cash and/or other securities or property such holder would
have received as a result of such redemption had such securities been
converted, exercised or exchanged immediately prior thereto. Unless the
provisions of any class or series of Convertible Securities (other than
Pre-Merger Convertible Securities) which are or become
<PAGE>
convertible into or exercisable or exchangeable for shares of Class A Liberty
Media Group Common Stock or Class B Liberty Media Group Common Stock provide
specifically to the contrary, after any Redemption Date on which all
outstanding shares of Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock were redeemed, any share of Class A Liberty
Media Group Common Stock or Class B Liberty Media Group Common Stock that is
issued on conversion, exercise or exchange of any such Convertible Securities
shall, immediately upon issuance pursuant to such conversion, exercise or
exchange and without any notice or any other action on the part of the
corporation or its Board of Directors or the holder of such share of Class A
Liberty Media Group Common Stock or Class B Liberty Media Group Common Stock,
be redeemed in exchange for, to the extent assets of the corporation are
legally available therefor, the amount of $.01 per share in cash.
(d) General.
(i) Not later than the 10th Trading Day following the consummation of
a Disposition referred to in paragraph 5(b) of this Part B of this Article
Third, the corporation shall announce publicly by press release (A) the
Liberty Media Group Net Proceeds of such Disposition, (B) the number of
outstanding shares of Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock, (C) the number of shares of Class A
Liberty Media Group Common Stock and Class B Liberty Media Group Common
Stock into or for which Convertible Securities are then convertible,
exercisable or exchangeable and the conversion, exercise or exchange
prices thereof (and stating which, if any, of such Convertible Securities
constitute Pre-Merger Convertible Securities), and (D) if the Disposition
is of all (not merely substantially all) of the properties and assets of
the Liberty Media Group, the Liberty Media Group Full Dilution Fraction as
of a recent date preceding the date of such notice. Not earlier than the
26th Trading Day and not later than the 30th Trading Day following the
consummation of such Disposition, the corporation shall announce publicly
by press release which of the actions specified in clauses (i) or (ii) of
paragraph 5(b) of this Part B of this Article Third it has irrevocably
determined to take.
(ii) If the corporation determines to pay a dividend pursuant to
clause (i) of paragraph 5(b) of this Part B of this Article Third, the
corporation shall, not later than the 30th Trading Day following the
consummation of such Disposition, cause to be given to each holder of
outstanding shares of Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock, and to each holder of Convertible
Securities convertible into or exercisable or exchangeable for shares of
either such series (unless provision for notice is otherwise made pursuant
to the terms of such Convertible Securities), a notice setting forth (A)
the record date for determining holders entitled to receive such dividend,
which shall be not earlier than the 40th Trading Day and not later than
the 50th Trading Day following the consummation of such Disposition, (B)
the anticipated payment date of such dividend (which shall not be more
than 85 Trading Days following the consummation of such Disposition), (C)
the kind of shares of capital stock, cash and/or other securities or
property to be distributed in respect of shares of Class A Liberty Media
Group Common Stock and Class B Liberty Media Group Common Stock, (D) the
Liberty Media Group Net Proceeds of such Disposition, (E) if the
Disposition is of all (not merely substantially all) the properties and
assets of the Liberty Media Group, the Liberty Media Group Full Dilution
Fraction as of a recent date preceding the date of such notice, (F) the
number of outstanding shares of Class A Liberty Media Group Common Stock
and Class B Liberty Media Group Common Stock and the number of shares of
Class A Liberty Media Group Common Stock and Class B Liberty Media Group
Common Stock into or for which outstanding Convertible Securities are then
convertible, exercisable or exchangeable and the conversion, exercise or
exchange prices thereof, (G) in the case of a notice to holders of
Convertible
<PAGE>
Securities (other than Pre-Merger Convertible Securities, in the case of a
Disposition of all (not merely substantially all) the properties and
assets of the Liberty Media Group), a statement to the effect that holders
of such Convertible Securities shall be entitled to receive such dividend
only if they appropriately convert, exercise or exchange such Convertible
Securities prior to the record date referred to in clause (A) of this
sentence, and (H) if the Disposition is of all (not merely substantially
all) the properties and assets of the Liberty Media Group, in the case of
a notice to holders of Pre-Merger Convertible Securities, a statement to
the effect that the holders of such Pre-Merger Convertible Securities
shall be entitled to receive such dividend (without interest) upon
conversion, exercise or exchange of such Pre-Merger Convertible
Securities. Such notice shall be sent by first-class mail, postage
prepaid, at such holder's address as the same appears on the transfer
books of the corporation.
(iii) If the corporation determines to undertake a redemption of
shares of Class A Liberty Media Group Common Stock and Class B Liberty
Media Group Common Stock following a Disposition of all (not merely
substantially all) of the properties and assets of the Liberty Media Group
pursuant to clause (ii) (A) of paragraph 5(b) of this Part B of this
Article Third, the corporation shall cause to be given to each holder of
outstanding shares of Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock and to each holder of Convertible
Securities convertible into or exercisable or exchangeable for shares of
either such series (unless provision for notice is otherwise made pursuant
to the terms of such Convertible Securities), a notice setting forth (A) a
statement that all shares of Class A Liberty Media Group Common Stock and
Class B Liberty Media Group Common Stock outstanding on the Redemption
Date shall be redeemed, (B) the Redemption Date (which shall not be more
than 85 Trading Days following the consummation of such Disposition), (C)
the kind of shares of capital stock, cash and/or other securities or
property to be paid as a redemption price in respect of shares of Class A
Liberty Media Group Common Stock and Class B Liberty Media Group Common
Stock outstanding on the Redemption Date, (D) the Liberty Media Group Net
Proceeds of such Disposition, (E) the Liberty Media Group Full Dilution
Fraction as of a recent date preceding the date of such notice, (F) the
place or places where certificates for shares of Class A Liberty Media
Group Common Stock and Class B Liberty Media Group Common Stock, properly
endorsed or assigned for transfer (unless the corporation waives such
requirement), are to be surrendered for delivery of certificates for
shares of such capital stock, cash and/or other securities or property,
(G) the number of outstanding shares of Class A Liberty Media Group Common
Stock and Class B Liberty Media Group Common Stock and the number of
shares of Class A Liberty Media Group Common Stock and Class B Liberty
Media Group Common Stock into or for which outstanding Convertible
Securities are then convertible, exercisable or exchangeable and the
conversion, exercise or exchange prices thereof (and stating which, if
any, of such Convertible Securities constitute Pre-Merger Convertible
Securities), and (H) in the case of a notice to holders of Convertible
Securities (other than Pre-Merger Convertible Securities), a statement to
the effect that holders of such Convertible Securities shall be entitled
to participate in such redemption only if such holders appropriately
convert, exercise or exchange such Convertible Securities on or prior to
the Redemption Date referred to in clause (B) of this sentence and a
statement as to what, if anything, such holders shall be entitled to
receive pursuant to the terms of such Convertible Securities or, if
applicable, paragraph 5(c) of this Part B of this Article Third if such
holders convert, exercise or exchange such Convertible Securities
following such Redemption Date. Such notice shall be sent by first-class
mail, postage prepaid, not less than 35 Trading Days nor more than 45
Trading Days prior to the Redemption Date, at such holder's address as the
same appears on the transfer books of the corporation.
<PAGE>
(iv) If the corporation determines to undertake a redemption of
shares of Class A Liberty Media Group Common Stock and Class B Liberty
Media Group Common Stock following a Disposition of substantially all (but
not all) of the properties and assets of the Liberty Media Group pursuant
to clause (ii)(B) of paragraph 5(b) of Part B of this Article Third, the
corporation shall, not later than the 30th Trading Day following the
consummation of such Disposition, cause to be given to each holder of
record of outstanding shares of Class A Liberty Media Group Common Stock
and Class B Liberty Media Group Common Stock, and to each holder of
Convertible Securities convertible into or exercisable or exchangeable for
shares of either such series (unless provision for notice is otherwise
made pursuant to the terms of such Convertible Securities), a notice
setting forth (A) a date not earlier than the 40th Trading Day and not
later than the 50th Trading Day following the consummation of such
Disposition which shall be the date on which shares of the Class A Liberty
Media Group Common Stock and Class B Liberty Media Group Common Stock then
outstanding shall be selected for redemption, (B) the anticipated
Redemption Date (which shall not be more than 85 Trading Days following
the consummation of such Disposition), (C) the kind of shares of capital
stock, cash and/or other securities or property to be paid as a redemption
price in respect of shares of Class A Liberty Media Group Common Stock and
Class B Liberty Media Group Common Stock selected for redemption, (D) the
Liberty Media Group Net Proceeds of such Disposition, (E) the number of
outstanding shares of Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock and the number of shares of Class A
Liberty Media Group Common Stock and Class B Liberty Media Group Common
Stock into or for which outstanding Convertible Securities are then
convertible, exercisable or exchangeable and the conversion or exercise
prices thereof, and (F) in the case of a notice to holders of Convertible
Securities, a statement to the effect that holders of such Convertible
Securities shall be entitled to participate in such selection for
redemption only if such holders appropriately convert, exercise or
exchange such Convertible Securities on or prior to the date referred to
in clause (A) of this sentence and a statement as to what, if anything,
such holders shall be entitled to receive pursuant to the terms of such
Convertible Securities if such holders convert, exercise or exchange such
Convertible Securities following such date. Promptly following the date
referred to in clause (A) of the preceding sentence, but not earlier than
the 40th Trading Day and not later than the 50th Trading Day following the
consummation of such Disposition, the corporation shall cause to be given
to each holder of shares of Class A Liberty Media Group Common Stock and
Class B Liberty Media Group Common Stock to be so redeemed, a notice
setting forth (A) the number of shares of Class A Liberty Media Group
Common Stock and Class B Liberty Media Group Common Stock held by such
holder to be redeemed, (B) a statement that such shares of Class A Liberty
Media Group Common Stock and Class B Liberty Media Group Common Stock
shall be redeemed, (C) the Redemption Date (which shall not be more than
85 Trading Days following the consummation of such Disposition), (D) the
kind and per share amount of shares of capital stock, cash and/or other
securities or property to be received by such holder with respect to each
share of such Class A Liberty Media Group Common Stock and Class B Liberty
Media Group Common Stock to be redeemed, including details as to the
calculation thereof, and (E) the place or places where certificates for
shares of such Class A Liberty Media Group Common Stock or Class B Liberty
Media Group Common Stock, properly endorsed or assigned for transfer
(unless the corporation waives such requirement), are to be surrendered
for delivery of certificates for shares of such capital stock, cash and/or
other securities or property. The notices referred to in this clause (iv)
shall be sent by first-class mail, postage prepaid, at such holder's
address as the same appears on the transfer books of the corporation. The
outstanding shares of Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock to be redeemed shall be redeemed by the
corporation pro rata among the holders of Class A Liberty Media Group
<PAGE>
Common Stock and Class B Liberty Media Group Common Stock or by such other
method as may be determined by the Board of Directors to be equitable.
(v) If the corporation determines to redeem shares of Class A Liberty
Media Group Common Stock and Class B Liberty Media Group Common Stock
pursuant to paragraph 5(a) of this Part B of this Article Third, the
corporation shall promptly cause to be given to each holder of Class A
Liberty Media Group Common Stock and Class B Liberty Media Group Common
Stock and to each holder of Convertible Securities convertible into or
exercisable or exchangeable for shares of either such series (unless
provision for such notice is otherwise made pursuant to the terms of such
Convertible Securities), a notice setting forth (A) a statement that all
outstanding shares of Class A Liberty Media Group Common Stock and Class B
Liberty Media Group Common Stock shall be redeemed in exchange for shares
of common stock of the Liberty Media Group Subsidiaries, (B) the
Redemption Date, (C) the place or places where certificates for shares of
Class A Liberty Media Group Common Stock and Class B Liberty Media Group
Common Stock, properly endorsed or assigned for transfer (unless the
corporation shall waive such requirement), are to be surrendered for
delivery of certificates for shares of common stock of the Liberty Media
Group Subsidiaries, (D) the number of outstanding shares of Class A
Liberty Media Group Common Stock and Class B Liberty Media Group Common
Stock and the number of shares of Class A Liberty Media Group Common Stock
and Class B Liberty Media Group Common Stock into or for which outstanding
Convertible Securities are then convertible, exercisable or exchangeable
and the conversion, exercise or exchange prices thereof (and stating
which, if any, of such Convertible Securities constitute Pre-Merger
Convertible Securities) and (E) in the case of a notice to holders of
Convertible Securities (other than Pre-Merger Convertible Securities), a
statement to the effect that holders of such Convertible Securities shall
be entitled to participate in such redemption only if such holders
appropriately convert, exercise or exchange such Convertible Securities on
or prior to the Redemption Date referred to in clause (B) of this sentence
and a statement as to what, if anything, such holders shall be entitled to
receive pursuant to the terms of such Convertible Securities or, if
applicable, paragraph 5(c) of this Part B of this Article Third if such
holders convert, exercise or exchange such Convertible Securities
following the Redemption Date. Such notice shall be sent by first-class
mail, postage prepaid, not less than 35 Trading Days nor more than 45
Trading Days prior to the Redemption Date, at such holder's address as the
same appears on the transfer books of the corporation.
(vi) Neither the failure to mail any notice required by this
paragraph 5(d) to any particular holder of Class A Liberty Media Group
Common Stock, Class B Liberty Media Group Common Stock or of Convertible
Securities nor any defect therein shall affect the sufficiency thereof
with respect to any other holder of outstanding shares of Class A Liberty
Media Group Common Stock or Class B Liberty Media Group Common Stock or of
Convertible Securities, or the validity of any redemption.
(vii) The corporation shall not be required to issue or deliver
fractional shares of any class of capital stock or any fractional
securities to any holder of Class A Liberty Media Group Common Stock or
Class B Liberty Media Group Common Stock upon any redemption, dividend or
other distribution pursuant to this paragraph 5. In connection with the
determination of the number of shares of any class of capital stock that
shall be issuable or the amount of securities that shall be deliverable to
any holder of record upon any such redemption, dividend or other
distribution (including any fractions of shares or securities), the
corporation may aggregate the number of shares of Class A Liberty Media
Group Common Stock or Class B Liberty Media Group Common Stock held at the
relevant time by such holder of record. If the number of shares
<PAGE>
of any class of capital stock or the amount of securities remaining to be
issued or delivered to any holder of Class A Liberty Media Group Common
Stock or Class B Liberty Media Group Common Stock is a fraction, the
corporation shall, if such fraction is not issued or delivered to such
holder, pay a cash adjustment in respect of such fraction in an amount
equal to the fair market value of such fraction on the fifth Trading Day
prior to the date such payment is to be made (without interest). For
purposes of the preceding sentence, "fair market value" of any fraction
shall be (A) in the case of any fraction of a share of capital stock of
the corporation, the product of such fraction and the Market Value of one
share of such capital stock and (B) in the case of any other fractional
security, such value as is determined by the Board of Directors.
(viii) No adjustments in respect of dividends shall be made upon the
redemption of any shares of Class A Liberty Media Group Common Stock or
Class B Liberty Media Group Common Stock; provided, however, that if the
Redemption Date with respect to the Class A Liberty Media Group Common
Stock or Class B Liberty Media Group Common Stock shall be subsequent to
the record date for the payment of a dividend or other distribution
thereon or with respect thereto, the holders of shares of Class A Liberty
Media Group Common Stock or Class B Liberty Media Group Common Stock at
the close of business on such record date shall be entitled to receive the
dividend or other distribution payable on or with respect to such shares
on the date set for payment of such dividend or other distribution,
notwithstanding the redemption of such shares or the corporation's default
in payment of the dividend or distribution due on such date.
(ix) Before any holder of shares of Class A Liberty Media Group
Common Stock or Class B Liberty Media Group Common Stock shall be entitled
to receive certificates representing shares of any kind of capital stock
or cash and/or securities or other property to be received by such holder
with respect to shares of Class A Liberty Media Group Common Stock or
Class B Liberty Media Group Common Stock pursuant to this paragraph 5 of
this Part B of this Article Third, such holder shall surrender at such
place as the corporation shall specify certificates for such shares of
Class A Liberty Media Group Common Stock or Class B Liberty Media Group
Common Stock, properly endorsed or assigned for transfer (unless the
corporation shall waive such requirement). The corporation shall as soon
as practicable after such surrender of certificates representing shares of
Class A Liberty Media Group Common Stock or Class B Liberty Media Group
Common Stock deliver to the person for whose account shares of Class A
Liberty Media Group Common Stock or Class B Liberty Media Group Common
Stock were so surrendered, or to the nominee or nominees of such person,
certificates representing the number of whole shares of the kind of
capital stock or cash and/or securities or other property to which such
person shall be entitled as aforesaid, together with any payment for
fractional securities contemplated by paragraph 5(d)(vii) of this Part B
of this Article Third. If less than all of the shares of Class A Liberty
Media Group Common Stock or Class B Liberty Media Group Common Stock
represented by any one certificate are to be redeemed, the corporation
shall issue and deliver a new certificate for the shares of Class A
Liberty Media Group Common Stock or Class B Liberty Media Group Common
Stock not redeemed. The corporation shall not be required to register a
transfer of any shares of Class A Liberty Media Group Common Stock or
Class B Liberty Media Group Common Stock selected or called for
redemption.
(x) From and after any applicable Redemption Date, all rights of a
holder of shares of Class A Liberty Media Group Common Stock or Class B
Liberty Media Group Common Stock that were redeemed shall cease except for
the right, upon surrender of the certificates representing shares of Class
A Liberty Media Group Common Stock or Class B Liberty Media Group Common
Stock, to receive certificates representing shares of the kind and amount
of
<PAGE>
capital stock or cash and/or securities or other property for which such
shares were redeemed, together with any payment for fractional securities
contemplated by paragraph 5(d)(vii) of this Part B of this Article Third
and such holder shall have no other or further rights in respect of the
shares of Class A Liberty Media Group Common Stock or Class B Liberty
Media Group Common Stock so redeemed, including, but not limited to, any
rights with respect to any cash, securities or other properties which are
reserved or otherwise designated by the corporation as being held for the
satisfaction of the corporation's obligations to pay or deliver any cash,
securities or other property upon the conversion, exercise or exchange of
any Convertible Securities that were convertible into or exercisable or
exchangeable for Class A Liberty Media Group Common Stock or Class B
Liberty Media Group Common Stock and outstanding as of the date of such
redemption. No holder of a certificate that, immediately prior to the
applicable Redemption Date for the Class A Liberty Media Group Common
Stock or Class B Liberty Media Group Common Stock, represented shares of
Class A Liberty Media Group Common Stock or Class B Liberty Media Group
Common Stock shall be entitled to receive any dividend or other
distribution with respect to shares of any kind of capital stock into or
in exchange for which the Class A Liberty Media Group Common Stock or
Class B Liberty Media Group Common Stock was redeemed until surrender of
such holder's certificate for a certificate or certificates representing
shares of such kind of capital stock. Upon such surrender, there shall be
paid to the holder the amount of any dividends or other distributions
(without interest) which theretofore became payable with respect to a
record date after the Redemption Date but that were not paid by reason of
the foregoing, with respect to the number of whole shares of the kind of
capital stock represented by the certificate or certificates issued upon
such surrender. From and after a Redemption Date for any shares of Class A
Liberty Media Group Common Stock or Class B Liberty Media Group Common
Stock, the corporation shall, however, be entitled to treat the
certificates for shares of Class A Liberty Media Group Common Stock or
Class B Liberty Media Group Common Stock that have not yet been
surrendered for redemption as evidencing the ownership of the number of
whole shares of the kind or kinds of capital stock for which the shares of
Class A Liberty Media Group Common Stock or Class B Liberty Media Group
Common Stock represented by such certificates shall have been redeemed,
notwithstanding the failure to surrender such certificates.
(xi) The corporation shall pay any and all documentary, stamp or
similar issue or transfer taxes that may be payable in respect of the
issue or delivery of any shares of capital stock and/or other securities
on redemption of shares of Class A Liberty Media Group Common Stock or
Class B Liberty Media Group Common Stock pursuant to this Part B of this
Article Third. The corporation shall not, however, be required to pay any
tax that may be payable in respect of any transfer involved in the issue
and delivery of any shares of capital stock in a name other than that in
which the shares of Class A Liberty Media Group Common Stock or Class B
Liberty Media Group Common Stock so redeemed were registered and no such
issue or delivery shall be made unless and until the person requesting
such issue has paid to the corporation the amount of any such tax, or has
established to the satisfaction of the corporation that such tax has been
paid.
6. Liquidation.
In the event of a liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, after payment or provision for
payment of the debts and other liabilities of the corporation and subject to
the prior payment in full of the preferential amounts to which any class or
series of Preferred Stock is entitled, (a) the holders of the shares of Common
Stock and (on the basis that may be
<PAGE>
set forth in this Certificate with respect to any such shares) the holders of
any other class of common shares (other than the Liberty Media Group Common
Stock) shall share in the aggregate in a percentage of the funds of the
corporation remaining for distribution to its common shareholders equal to 100%
multiplied by the average daily ratio (expressed as a decimal) of X/Z for the
20-Trading Day period ending on the Trading Day prior to the date of the public
announcement of such liquidation, dissolution or winding up, and (b) the
holders of the shares of Class A Liberty Media Group Common Stock and the
holders of the shares of Class B Liberty Media Group Common Stock shall share
equally, on a share for share basis, in a percentage of the funds of the
corporation remaining for distribution to its common shareholders equal to 100%
multiplied by the average daily ratio (expressed as a decimal) of Y/Z for such
20-Trading Day period, where X is the aggregate Market Capitalization of the
Common Stock and any other class of common shares (other than the Liberty Media
Group Common Stock), Y is the aggregate Market Capitalization of the Class A
Liberty Media Group Common Stock and the Class B Liberty Media Group Common
Stock, and Z is the aggregate Market Capitalization of the Common Stock, any
other class of common shares (other than the Liberty Media Group Common Stock),
the Class A Liberty Media Group Common Stock and the Class B Liberty Media
Group Common Stock. Neither the consolidation or merger of the corporation with
or into any other corporation or corporations nor the sale, transfer or lease
of all or substantially all of the assets of the corporation shall itself be
deemed to be a liquidation, dissolution or winding up of the corporation within
the meaning of this paragraph 6 of this Part B of this Article Third.
Notwithstanding the foregoing, any transaction or series of related
transactions which results in all of the assets and liabilities included in the
Liberty Media Group being held by one or more Liberty Media Group Subsidiaries,
and the distribution of such Liberty Media Group Subsidiaries (and no other
material assets or liabilities) to the holders of the outstanding Liberty Media
Group Common Stock shall not constitute a voluntary or involuntary liquidation,
dissolution or winding up of the corporation for purposes of this paragraph 6
of this Part B of this Article Third, but shall be subject to paragraph 5(a) of
this Part B of this Article Third.
7. Determinations by the Board of Directors.
Any determinations made by the Board of Directors under any provision in
this Part B of this Article Third shall be final and binding on all
shareholders of the corporation, except as may otherwise be required by law.
The corporation shall prepare a statement of any such determination by the
Board of Directors respecting the fair market value of any properties, assets
or securities and shall file such statement with the Secretary of the
corporation.
8. Relationship Between the Liberty Media Group and the Common Stock Group.
(a) In furtherance and not in limitation of the provisions of Article
Ninth, neither the Liberty Media Group on the one hand, nor the Common Stock
Group on the other hand, shall have any duty, responsibility or obligation to
refrain from (and none of the directors or officers of the corporation, the
Liberty Media Group or the Common Stock Group shall have any duty,
responsibility or obligation to cause the Liberty Media Group or the Common
Stock Group to refrain from) (i) engaging in the same or similar activities or
lines of business as any member of the other Group, (ii) doing business with
any potential or actual supplier or customer of any member of any other Group
or (iii) engaging in, or refraining from, any other activities whatsoever
relating to any of the potential or actual suppliers or customers of any member
of the other Group.
(b) In furtherance and not in limitation of the provisions of Article
Ninth, neither the Liberty Media Group on the one hand, nor the Common Stock
Group on the other hand, shall have any duty, responsibility or obligation (and
none of the directors or officers of the corporation, the Liberty Media
<PAGE>
Group or the Common Stock Group shall have any duty, responsibility or
obligation to cause the Liberty Media Group or the Common Stock Group) (i) to
communicate or offer any business or other corporate opportunity to any other
Person (including any business or other corporate opportunity which may arise
which either Group may be financially able to undertake, and which is, from its
nature, in the line of more than one Group's business and is of practical
advantage to more than one Group), (ii) to provide financial support to the
other Group (or any member thereof) or (iii) otherwise to assist the other
Group.
(c) In furtherance and not in limitation of the provisions of Article
Ninth, no director or officer of the corporation shall be liable to the
corporation or any holder of any securities of the corporation in respect of
any failure or alleged failure of such officer or director to offer to (or to
cause the Liberty Media Group or the Common Stock Group to offer to) either
Group any corporate opportunity of any kind or nature that is pursued by the
other Group.
(d) Nothing in this paragraph 8 of this Part B of this Article Third shall
prevent any members of the Liberty Media Group from entering into written
agreements with the Common Stock Group to define or restrict any aspect of the
relationship between the Groups.
9. Certain Definitions.
Unless the context otherwise requires, the terms defined in this Part B of
this Article Third shall have, for all purposes of this Part B of this Article
Third, the meanings herein specified:
"Common Stock Group" shall mean, as of any date, the interest of the
corporation or any of its subsidiaries in all of the businesses in which the
corporation or any of its subsidiaries (or any of their predecessors or
successors) is or has been engaged, directly or indirectly, and the respective
assets and liabilities of the corporation or any of its subsidiaries, other
than any businesses, assets or liabilities of the Liberty Media Group.
"Convertible Securities" shall mean any securities of the corporation
(other than the Liberty Media Group Common Stock) or any Subsidiary thereof
that are convertible into, exchangeable for or evidence the right to purchase
any shares of Common Stock or of any series of Liberty Media Group Common
Stock, whether upon conversion, exercise, exchange, pursuant to antidilution
provisions of such securities or otherwise.
"Covered Disposition" shall mean (x) any direct or indirect sale, transfer
or conveyance by the corporation of any of its equity interest in Liberty Media
Corporation or any Covered Entity or (y) any grant of any pledge or other
security interest in the equity interest of the corporation in Liberty Media
Corporation or any Covered Entity; provided, however, that the foregoing shall
not apply to (i) any issuance or sale by the corporation of its own securities,
(ii) any issuance or sale by Liberty Media Corporation of its own securities or
any sale, transfer or conveyance by Liberty Media Corporation or any other
Person included in the Liberty Media Group of any securities of any Person
included in the Liberty Media Group, (iii) with respect to any Covered Entity,
any transaction duly authorized by the board of directors of such Covered
Entity, or (iv) any merger, consolidation, exchange of shares or other business
combination transaction involving the corporation in which the corporation (or
its successors) continues immediately following such transaction to hold the
same direct or indirect interest in the business, assets and liabilities
comprising the Liberty Media Group that it held immediately prior to such
transaction (other than as a result of any action by any Person included in the
Liberty Media Group). If a contribution of assets of Liberty Media Corporation
to Liberty Media Group LLC occurs (other than the initial contribution made on
formation thereof), then from and after the date of such contribution all
<PAGE>
references in the preceding sentence of this definition of Covered Disposition
to Liberty Media Corporation shall be deemed to refer to Liberty Media Group
LLC.
"Covered Entity" shall mean, as of any date of determination, each of the
following Persons (and any successor to such Person, by merger, consolidation,
sale of all or substantially all of its assets or otherwise, whether or not in
connection with a Related Business Transaction) unless all of the Corporation's
equity interest in such Person or all of the assets of such Person are held by
(i) Liberty Media Corporation, if such date of determination is prior to the
contribution of assets of Liberty Media Corporation to Liberty Media Group LLC
(other than the initial contribution made on formation thereof) or (ii) Liberty
Media Group LLC, if such date of determination is after the contribution
referred to in clause (i): Tele-Communications International, Inc., TCI
Wireless Holdings, Inc., TCIP, Inc., Silver Spur Land and Cattle Co., and TCI
Interactive, Inc.
"Disposition" shall mean the sale, transfer, assignment or other
disposition (whether by merger, consolidation, sale or contribution of assets
or stock or otherwise) by the corporation (or its successors) or any of its
Subsidiaries of properties or assets. Disposition shall not include a merger,
consolidation, exchange of shares or other business combination transaction
involving the corporation in which the corporation (or its successors)
continues immediately following such transaction to hold the same direct and
indirect interest in the business, assets and liabilities comprising the
Liberty Media Group that it held immediately prior to such transaction (other
than as a result of any action by any Person included in the Liberty Media
Group).
"Group" shall mean either the Common Stock Group or the Liberty Media
Group.
"Liberty Media Group" shall mean, as of any date that any shares of Class
A Liberty Media Group Common Stock or Class B Liberty Media Group Common Stock
have been issued and continue to be outstanding, each of the following, without
duplication: (a) the proceeds of any issuances or sales of Class A Liberty
Media Group Common Stock, Class B Liberty Media Group Common Stock or any
Convertible Securities that are convertible into or exercisable or exchangeable
for Liberty Media Group Common Stock or of any Preferred Stock that is
attributed to the Liberty Media Group; (b) the interest of the corporation or
any of its subsidiaries in the Associated Group, Inc., a Delaware corporation,
and the proceeds of any disposition thereof; (c) the interest of the
Corporation or any of its subsidiaries in each Covered Entity or any subsidiary
of a Covered Entity and their respective properties and assets (including,
without limitation, the Sprint PCS Investment) and the proceeds of any
disposition thereof; and (d) the interest of the corporation or of any of its
subsidiaries in Liberty Media Corporation or any of its subsidiaries (including
any successor thereto by merger, consolidation or sale of all or substantially
all of its assets, whether or not in connection with a Related Business
Transaction) and their respective properties and assets and the proceeds of any
disposition thereof; provided, however, that if a contribution of assets of
Liberty Media Corporation to Liberty Media Group LLC occurs (other than the
initial contribution made on formation thereof), then from and after the date
of such contribution, the Liberty Media Group shall mean, as of any date that
any shares of Class A Liberty Media Group Common Stock or Class B Liberty Media
Group Common Stock continue to be outstanding, in addition to the assets
referred to in clauses (a), (b) and (c) above and in clause (e) below, the
interest of the corporation or any of its subsidiaries in (i) the Retained
Business and (ii) Liberty Media Group LLC or any of its subsidiaries (including
any successor thereto by merger, consolidation or sale of all or substantially
all of its assets, whether or not in connection with a Related Business
Transaction) and their respective properties and assets and the proceeds of any
disposition thereof; and (e) the interest of the corporation in all dividends
and distributions from Liberty Media Group LLC to Liberty Media Corporation or
any of its subsidiaries (including any such successor) or from Liberty Media
Corporation (or any such successor) to its shareholders or from any Covered
Entity to its shareholders. For purposes
<PAGE>
hereof, "Retained Businesses" means the businesses, assets and liabilities of
Liberty Media Corporation immediately following the contribution referred to in
the preceding sentence (or, if there is more than one such contribution after
the initial contribution made on formation, then the first of such
contributions).
"Liberty Media Group Available Dividend Amount," as of any date, shall
mean the excess of (i) the amount by which the total assets of the Liberty
Media Group exceed the total liabilities of the Liberty Media Group as of such
date over (ii) the sum of (A) the par value of all issued shares of Liberty
Media Group Common Stock and each class or series of Preferred Stock attributed
to the Liberty Media Group, (B) the amount of the consideration received for
any shares of Preferred Stock attributed to the Liberty Media Group without par
value that have been issued, except such part of the consideration therefor as
may have been allocated to surplus in a manner permitted by law, and (C) any
amount not included in clauses (A) and (B) that the corporation (by appropriate
action of its Board of Directors) has transferred to stated capital
specifically in respect of Liberty Media Group Common Stock, minus (D) all
reductions from such sums set forth in clauses (A), (B) and (C) as have been
effected in a manner permitted by law; provided, however, that in the event
that the law governing the corporation changes from that governing the
corporation on the date of the adoption of the Amendment to this Certificate
pursuant to which the Liberty Media Group Common Stock was authorized (whether
because of amendment of the applicable law or because of a change in the
jurisdiction of incorporation of the corporation through merger or otherwise),
the Liberty Media Group Available Dividend Amount shall mean that amount of
dividends, as determined by the Board of Directors, that could be paid by a
corporation (governed under such applicable law) having the assets and
liabilities of the Liberty Media Group, an amount of outstanding common stock
(and having an aggregate par value) equal to the amount (and aggregate par
value) of the outstanding Liberty Media Group Common Stock and of each class or
series of Preferred Stock attributed to the Liberty Media Group and having an
amount of earnings or loss or other relevant corporate attributes as reasonably
determined by the Board of Directors in light of all factors deemed relevant by
the Board.
"Liberty Media Group Full Dilution Fraction" shall mean, as of any date, a
fraction the numerator of which is the aggregate number of shares of Class A
Liberty Media Group Common Stock and Class B Liberty Media Group Common Stock
outstanding on such date and the denominator of which is the sum of (a) such
aggregate number of shares of Class A Liberty Media Group Common Stock and
Class B Liberty Media Group Common Stock outstanding on such date and (b) the
aggregate number of shares of Class A Liberty Media Group Common Stock and
Class B Liberty Media Group Common Stock issuable, determined as of such date,
upon conversion, exercise or exchange of Pre-Merger Convertible Securities.
"Liberty Media Group LLC" shall mean Liberty Media Group LLC, a Delaware
limited liability company, of which Liberty Media Corporation and Liberty
Management LLC are the members, and any successor thereto (by merger,
consolidation, sale of all or substantially all of its assets or otherwise,
whether or not in connection with a Related Business Transaction).
"Liberty Media Group Net Proceeds" shall mean, as of any date, with
respect to any Disposition of any of the properties and assets of the Liberty
Media Group, an amount, if any, equal to the gross proceeds of such Disposition
after any payment of, or reasonable provision for, (a) any taxes payable by the
corporation in respect of such Disposition or in respect of any resulting
dividend or redemption pursuant to clause (i) or (ii), respectively, of
paragraph 5(b) of this Part B of this Article Third (or which would have been
payable but for the utilization of tax benefits attributable to the Common
Stock Group) reduced by any offset to such liability of the Liberty Media Group
allowed pursuant to the Tax Sharing Agreement entered into pursuant to the
Merger Agreement, (b) any transaction costs borne by the Common Stock Group in
connection with such Disposition, including, without limitation, any legal,
<PAGE>
investment banking and accounting fees and expenses borne by the Common Stock
Group in connection with such Disposition, (c) any liabilities and other
obligations (contingent or otherwise) of the Liberty Media Group borne by the
Common Stock Group in connection with such Disposition, including, without
limitation, any indemnity or guarantee obligations incurred by the Common Stock
Group in connection with the Disposition or any liabilities assumed by the
Common Stock Group for future purchase price adjustments, and (d) any
preferential amounts, accumulated and unpaid dividends and other obligations
(other than with respect to Pre-Merger Convertible Securities) in respect of
Preferred Stock attributed to the Liberty Media Group; provided, however, that
the net amount determined in accordance with the foregoing provisions of this
sentence shall, without duplication, be increased by the net amount, if any,
payable by the Common Stock Group to the Liberty Media Group, or decreased by
the net amount, if any, payable by the Liberty Media Group to the Common Stock
Group, pursuant to the Tax Sharing Agreement referred to above, as applicable,
as a result of the deconsolidation of the properties and assets of the Liberty
Media Group disposed of in such Disposition. For purposes of this definition,
any properties and assets of the Liberty Media Group remaining after such
Disposition shall constitute "reasonable provision" for such amount of taxes,
costs and liabilities (contingent or otherwise) as can be supported by such
properties and assets. To the extent the proceeds of any Disposition include
any securities or other property other than cash, the Board of Directors shall
determine the value of such securities or property.
"Liberty Media Corporation" shall mean Liberty Media Corporation, a
Delaware corporation, and any successor thereto (by merger, consolidation, sale
of all or substantially all of its assets or otherwise, whether or not in
connection with a Related Business Transaction).
"Market Capitalization" of any class or series of capital stock of the
corporation on any Trading Day shall mean the product of (i) the Market Value
of one share of such class or series on such Trading Day and (ii) the number of
shares of such class or series outstanding on such Trading Day.
"Market Value" of any class or series of capital stock of the corporation
on any day shall mean the average of the high and low reported sales prices
regular way of a share of such class or series on such day (if such day is a
Trading Day, and if such day is not a Trading Day, on the Trading Day
immediately preceding such day) or in case no such reported sale takes place on
such Trading Day the average of the reported closing bid and asked prices
regular way of a share of such class or series on such Trading Day, in either
case on the New York Stock Exchange or, if the shares of such class or series
are not quoted on the New York Stock Exchange on such Trading Day, on the
Nasdaq National Market, or if the shares of such class or series are not quoted
on the Nasdaq National Market on such Trading Day, the average of the closing
bid and asked prices of a share of such class or series in the over-the-counter
market on such Trading Day as furnished by any New York Stock Exchange member
firm selected from time to time by the corporation, or if such closing bid and
asked prices are not made available by any such New York Stock Exchange member
firm on such Trading Day (including without limitation because such securities
are not publicly held), the market value of a share of such class or series as
determined by the Board of Directors; provided that for purposes of determining
the ratios set forth in paragraph 6 of this Part B of this Article Third, (a)
the "Market Value" of any share of Common Stock or of any class of Liberty
Media Group Common Stock on any day prior to the "ex" date or any similar date
for any dividend or distribution paid or to be paid with respect to the Common
Stock or such class of Liberty Media Group Common Stock, as applicable, shall
be reduced by the fair market value of the per share amount of such dividend or
distribution as determined by the Board of Directors and (b) the "Market Value"
of any share of Common Stock or of any class of Liberty Media Group Common
Stock on any day prior to (i) the effective date of any subdivision (by stock
split or otherwise) or combination (by reverse stock split or otherwise) of
outstanding shares of Common Stock or of such class of Liberty Media Group
Common Stock, as applicable, or (ii) the "ex" date or any similar date for any
dividend or
<PAGE>
distribution with respect to the Common Stock or any such class of Liberty
Media Group Common Stock in shares of the Common Stock or such class of Liberty
Media Group Common Stock, as applicable, shall be appropriately adjusted to
reflect such subdivision, combination, dividend or distribution.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof, or other entity, whether acting in an individual, fiduciary or other
capacity.
"Pre-Merger Convertible Securities" shall mean Convertible Securities that
were outstanding immediately following the Effective Time (as such term is
defined in the Merger Agreement) and were, at such date convertible into or
exercisable or exchangeable for shares of Class A Liberty Media Group Common
Stock or Class B Liberty Media Group Common Stock.
"Qualifying Subsidiary" of a Person shall mean a Subsidiary of such Person
in which such Person's ownership and voting interest is sufficient to satisfy
the ownership and voting requirements of the Internal Revenue Code and the
regulations thereunder for a distribution of such Person's interest in such
Subsidiary to the holders of Class A Liberty Media Group Common Stock and Class
B Liberty Media Group Common Stock to be tax free to such holders.
"Redemption Date" shall mean any date fixed for a redemption or purchase
of shares of Class A Liberty Media Group Common Stock and Class B Liberty Media
Group Common Stock as set forth in a notice to holders of such series pursuant
to this Certificate.
"Related Business Transaction" shall mean any Disposition of all or
substantially all of the properties and assets of the Liberty Media Group in
which the corporation receives as proceeds of such Disposition primarily equity
securities (including, without limitation, capital stock, convertible
securities, partnership or limited partnership interests, limited liability
company membership interests and other types of equity securities, without
regard to the voting power or contractual or other management or governance
rights related to such equity securities) of the purchaser or acquiror of such
assets and properties of the Liberty Media Group, any entity which succeeds (by
merger, formation of a joint venture enterprise or otherwise) to such assets
and properties of the Liberty Media Group, or a third party issuer, which
purchaser, acquiror or other issuer is engaged or proposes to engage primarily
in one or more businesses similar or complementary to the businesses conducted
by the Liberty Media Group prior to such Disposition, as determined in good
faith by the Board of Directors, and upon consummation of such transaction is
included in the Liberty Media Group.
"Sprint PCS Investment" shall mean the common equity securities (and
securities convertible into or exercisable or exchangeable for such common
equity securities) of Sprint Corporation acquired by Tele-Communications, Inc.
("TCI") and its affiliates pursuant to that certain Restructuring and Merger
Agreement, dated as of May 26, 1998, among TCI, Sprint Corporation, Comcast
Corporation and Cox Communications, Inc. (the "PCS Restructuring Agreement")
(as well as any indebtedness of Sprint Corporation or any of its affiliates to
TCI or any of its affiliates remaining following the consummation of the
transactions contemplated by the PCS Restructuring Agreement).
"Subsidiary" shall mean, with respect to any Person, any corporation,
limited liability company or partnership 50% or more of whose outstanding
voting securities or membership or partnership interests, as the case may be,
are directly or indirectly owned by such Person.
<PAGE>
"Trading Day" shall mean each weekday other than any day on which any
relevant class or series of capital stock of the corporation is not traded on
the New York Stock Exchange or the Nasdaq National Market or in the
over-the-counter market.
PART C--PREFERRED STOCK
The Preferred Stock may be issued from time to time in one or more series.
All shares of Preferred Stock of all series shall rank equally and be identical
in all respects except that the Board of Directors is authorized to fix the
number of shares in each series, the designation thereof and, subject to the
provisions of this Article Third, the relative rights, preferences and
limitations of each series and the variations in such rights, preferences and
limitations as between series and specifically is authorized to fix with
respect to each series:
(a) the dividend rate on the shares of such series and the date or
dates from which dividends shall be cumulative;
(b) the times when, the prices at which, and all other terms and
conditions upon which, shares of such series shall be redeemable;
(c) the amounts which the holders of shares of such series shall be
entitled to receive upon the liquidation, dissolution or winding up of the
corporation, which amounts may vary depending on whether such liquidation,
dissolution or winding up is voluntary or involuntary and, if voluntary,
may vary at different dates;
(d) whether or not the shares of such series shall be subject to the
operation of a purchase, retirement or sinking fund and, if so, the extent
to and manner in which such purchase, retirement or sinking fund shall be
applied to the purchase or redemption of the shares of such series for
retirement or for other corporate purposes and the terms and provisions
relative to the operation of the said fund or funds;
(e) whether or not the shares of such series shall be convertible
into or exchangeable for shares of any other class or series or for any
class of common shares and, if so, the price of prices or the rate or
rates of conversion or exchange and the method, if any, of adjusting the
same;
(f) the restrictions, if any, upon the payment of dividends or making
of other distributions on, and upon the purchase or other acquisition of,
common shares;
(g) the restrictions, if any, upon the creation of indebtedness, and
the restrictions, if any, upon the issue of any additional shares ranking
on a parity with or prior to the shares of such series in addition to the
restrictions provided for in this Article Third;
(h) the voting powers, if any, of the shares of such series in
addition to the voting powers provided for in this Article Third; and
(i) such other rights, preferences and limitations as shall not be
inconsistent with this Article Third.
<PAGE>
All shares of any particular series shall rank equally and be identical in
all respects except that shares of any one series issued at different times may
differ as to the date from which dividends shall be cumulative.
Dividends on shares of Preferred Stock of each series shall be cumulative
from the date or dates fixed with respect to such series and shall be paid or
declared or set apart for payment for all past dividend periods and for the
current dividend period before any dividends (other than dividends payable in
common shares) shall be declared or paid or set apart for payment on common
shares. Whenever, at any time, full cumulative dividends for all past dividend
periods and for the current dividend period shall have been paid or declared
and set apart for payment on all then outstanding shares of Preferred Stock and
all requirements with respect to any purchase, retirement or sinking fund or
funds for all series of Preferred Stock shall have been complied with, the
Board of Directors may declare dividends on the common shares and the shares of
Preferred Stock shall not be entitled to share therein.
Upon any liquidation, dissolution or winding up of the corporation, the
holders of shares of Preferred Stock of such series shall be entitled to
receive the amounts to which such holders are entitled as fixed with respect to
such series, including all dividends accumulated to the date of final
distribution, before any payment or distribution of assets of the corporation
shall be made to or set apart for the holders of common shares and after such
payments shall have been made in full to the holders of shares of Preferred
Stock, the holders of common shares shall be entitled to receive any and all
assets remaining to be paid or distributed to shareholders and the holders of
shares of Preferred Stock shall not be entitled to share therein. For the
purposes of this paragraph, the voluntary sale, conveyance, lease, exchange or
transfer of all or substantially all the property or assets of the corporation
or a consolidation or merger of the corporation with one or more other
corporations (whether or not the corporation is the corporation surviving such
consolidation or merger) shall not be deemed to be a liquidation, dissolution
or winding up, voluntary or involuntary.
The aggregate amount which all shares of Preferred Stock outstanding at
any time shall be entitled to receive on involuntary liquidation, dissolution
or winding up shall not exceed $8,000,000,000.
So long as any shares of Preferred Stock are outstanding, the corporation
will not (a) without the affirmative vote or consent of the holders of at least
66 2/3% of all the shares of Preferred Stock at the time outstanding, (i)
authorize shares of stock ranking prior to the shares of Preferred Stock, or
(ii) change any provision of this Article Third so to affect adversely the
shares of Preferred Stock; (b) without the affirmative vote or consent of the
holders of at least 66 2/3% of any series of Preferred Stock at the time
outstanding, change any of the provisions of such series so as to affect
adversely the shares of such series; (c) without the affirmative vote or
consent of the holders of at least a majority of all the shares of Preferred
Stock at the time outstanding, (i) increase the authorized number of shares of
Preferred Stock or (ii) increase the authorized number of shares of any class
of stock ranking on a parity with the Preferred Stock.
Whenever, at any time or times, dividends payable on shares of Preferred
Stock shall be in default in an aggregate amount equivalent to six full
quarterly dividends on any series of Preferred Stock at the time outstanding,
the number of directors then constituting the Board of Directors of the
corporation shall ipso facto be increased by two, and the outstanding shares of
Preferred Stock shall, in addition to any other voting rights, have the
exclusive right, voting separately as a class and without regard to series, to
elect two directors of the corporation to fill such newly created directorships
and such right shall continue until such time as all dividends accumulated on
all shares of Preferred Stock to the latest dividend payment date shall have
been paid or declared and set apart for payment.
<PAGE>
No holder of shares of Preferred Stock of any series, irrespective of any
voting or other right of shares of such series, shall have, as such holder, any
preemptive right to purchase any other shares of the corporation or any
securities convertible into or entitling the holder to purchase such other
shares.
If in any case the amounts payable with respect to any requirements to
retire shares of Preferred Stock are not paid in full in the case of all series
with respect to which such requirements exist, the number of shares to be
retired in each series shall be in proportion to the respective amounts which
would be payable on account of such requirements if all amounts payable were
paid in full.
****
FOURTH: The manner in which the foregoing amendment of said
Certificate of Incorporation of the corporation was authorized was by the
vote of the holders of a majority of all outstanding shares of the
corporation entitled to vote thereon at a meeting of shareholders,
subsequent to the unanimous vote of the Board of Directors.
<PAGE>
IN WITNESS WHEREOF, we have subscribed this document on , 1999 and do
hereby affirm, under the penalties of perjury, that the statements contained
herein have been examined by us and are true and correct.
By:
----------------------------------
Name:
Title: Vice President
By:
----------------------------------
Name:
Title: Assistant Secretary
<PAGE>
Certificate of Amendment of the Certificate of Incorporation
Under Section 805 of the New York State Business Corporation Law
We, the undersigned, being a Vice President and an Assistant Secretary
respectively, of AT&T Corp., do hereby certify as follows:
FIRST: The name of the corporation is AT&T Corp.
SECOND: The Certificate of Incorporation of the corporation was filed
by the Department of State on March 3, 1885 under the name American
Telephone and Telegraph Company.
THIRD: (a) The Certificate of Incorporation of the corporation is
hereby amended to create one new class of common stock, AT&T Wireless
Group common stock, having the number, designation, relative rights,
preferences, and limitations as set forth herein.
(b) To effect the foregoing, Article THIRD is hereby amended as set
forth below:
PART A of Article THIRD is hereby amended to read in its entirety as follows:
PART A - Authorized Shares
The aggregate number of shares which the corporation is authorized to
issue is fourteen billion eight hundred fifty million (14,850,000,000) shares,
consisting of one hundred million (100,000,000) preferred shares having a par
value of $1.00 per share ("Preferred Stock") and fourteen billion seven hundred
fifty million (14,750,000,000) common shares, of which six billion
(6,000,000,000) common shares shall be Common Stock having a par value of $1.00
per share ("Common Stock"), two billion five hundred million (2,500,000,000)
common shares shall be Class A Liberty Media Group Common Stock having a par
value of $1.00 per share ("Class A Liberty Media Group Common Stock"), two
hundred fifty million (250,000,000) common shares shall be Class B Liberty
Media Group Common Stock having a par value of $1.00 per share ("Class B
Liberty Media Group Common Stock") and six billion (6,000,000,000) common
shares shall be Wireless Group Common Stock having a par value of $1.00 per
share ("Wireless Group Common Stock"). The Class A Liberty Media Group Common
Stock and the Class B Liberty Media Group Common Stock are collectively
referred to herein as the "Liberty Media Group Common Stock".
The authorized shares of Class B Liberty Media Group Common Stock will
only be issued (i) pursuant to the Agreement and Plan of Restructuring and
Merger, dated June 23, 1998 (the "Merger Agreement"), among
Tele-Communications, Inc., Italy Merger Corp. and the corporation, (ii) upon
conversion, exercise or exchange of Pre-Merger Convertible Securities (as
defined in paragraph 9 of Part B of this Article Third), (iii) in a subdivision
(by stock split or otherwise) of outstanding shares of Class B Liberty Media
Group Common Stock, or (iv) as a stock dividend or share distribution (as
defined in paragraph 4 of Part B of this Article Third).
<PAGE>
Part B of Article THIRD shall remain unchanged. Part C of Article THIRD is
hereby redesignated as Part D of Article THIRD and shall otherwise remain
unchanged, and a new Part C shall be added to Article THIRD, so that Part C of
Article THIRD shall read in its entirety as follows:
PART C - Wireless Group Common Stock
1. Voting Rights.
(a) Subject to the following two sentences and to paragraph 1(c) of this
Part C of this Article Third, holders of Wireless Group Common Stock shall be
entitled to a number of votes or fraction of a vote for each share of such
stock held (calculated to the nearest 1/10), on all matters presented to such
shareholders, the numerator of which shall be the price per share of Wireless
Group Common Stock used in the initial public offering of Wireless Group Common
Stock and the denominator of which shall be the average daily Market Value of a
share of Common Stock during the 10-Trading Day period ending on the 20th
Trading Day prior to the effective date of the registration statement for such
initial public offering. In the event that AT&T Wireless Group tracking stock
is first distributed without an initial public offering, holders of Wireless
Group Common Stock shall be entitled to a number of votes or fraction of a vote
for each share of such stock held (calculated to the nearest 1/10), on all
matters presented to such shareholders, the numerator of which shall be the
average daily Market Value of a share of Wireless Group Common Stock during the
10-Trading Day period beginning on the 20th Trading Day following such initial
distribution and the denominator of which shall be the average daily Market
Value of a share of Common Stock during the 10-Trading Day period beginning on
the 20th Trading Day following such initial distribution. Notwithstanding the
foregoing, if the fraction resulting from the applicable formula set forth in
the preceding two sentences is greater than 0.8 and less than 1.2, holders of
Wireless Group Common Stock shall be entitled to one vote for each share of
such stock held, and if the fraction resulting from the applicable formula set
forth in the preceding two sentences is greater than 0.4 and less than 0.6,
holders of Wireless Group Common Stock shall be entitled to one-half of a vote
for each share of such stock held, in each case on all matters presented to
such shareholders.
(b) Except as may otherwise be required by the laws of the State of New
York or, with respect to additional or special voting rights (which may
include, without limitation, rights of any such holders of any such class or
series to elect one or more directors voting separately as a class) of any
class or series of Preferred Stock or any other class of common shares, in this
Certificate of Incorporation of the corporation, as the same may be amended
from time to time (this "Certificate") (including the terms of the Liberty
Media Group Common Stock, any class or series of Preferred Stock and any
resolution or resolutions providing for the establishment of such class or
series pursuant to authority vested in the Board of Directors by this
Certificate and the terms of any other class of common shares), the holders of
shares of Common Stock, the holders of shares of Wireless Group Common Stock,
the holders of shares of Class A Liberty Media Group Common Stock, the holders
of shares of Class B Liberty Media Group Common Stock, the holders of shares of
each other class of common shares, if any, entitled to vote thereon, and the
holders of shares of each class or series of Preferred Stock, if any, entitled
to vote thereon, shall vote as one class with respect to all matters to be
voted on by shareholders of the corporation, and no separate vote or consent of
the holders of shares of Common Stock, the holders of shares of Wireless Group
Common Stock, the holders of shares of Class A Liberty Media Group Common
Stock, the holders of shares of Class B Liberty Media Group Common Stock or the
holders of shares of any such class of common shares or any such class or
series of Preferred Stock shall be required for the approval of any such
matter, except, in the case of Liberty Media Group Common Stock, under the
circumstances described in paragraph 1(b) of Part B of this Article Third.
(c) If the corporation shall in any manner subdivide (by stock split or
otherwise) or combine (by reverse stock split or otherwise) the outstanding
shares of Common Stock, Wireless Group Common Stock
<PAGE>
or Liberty Media Group Common Stock, or pay a stock dividend in shares of any
class to holders of that class or shall otherwise effect a share distribution
(as defined in paragraph 3 of this Part C of this Article Third) of Common
Stock, Wireless Group Common Stock or Liberty Media Group Common Stock, the per
share voting rights of Common Stock and Liberty Media Group Common Stock
specified in paragraph 1(a) of Part B of this Article Third and/or the per
share voting rights of Wireless Group Common Stock specified in paragraph 1(a)
of this Part C of this Article Third shall be appropriately adjusted so as to
avoid any dilution in the aggregate voting rights of any one class relative to
the other classes.
2. Dividends.
(a) Dividends on Common Stock. Dividends on Common Stock may be declared
and paid only to the extent of (i) the assets of the corporation legally
available therefor minus (ii) the sum of (A) the Liberty Media Group Available
Dividend Amount (as defined in paragraph 9 of Part B of this Article Third),
and (B) the Wireless Group Available Dividend Amount (such amount available for
the payment of dividends on Common Stock is referred to in this Part C of this
Article Third as the "Common Stock Available Dividend Amount(W)").
(b) Dividends on Wireless Group Common Stock. Dividends on Wireless Group
Common Stock may be declared and paid only out of the lesser of (i) the excess,
if any, of (A) the assets of the corporation legally available therefor, over
(B) the Liberty Media Group Available Dividend Amount, and (ii) the Wireless
Group Available Dividend Amount. Concurrently with the payment of any dividend
on shares of Wireless Group Common Stock, at the election of the Board of
Directors, either (x) the Common Stock Group(W) shall receive from the Wireless
Group an aggregate payment of the same kind of cash and/or property that is the
subject of such dividend, which payment shall be equal to the excess, if any,
of (i) the quotient obtained by dividing (A) the aggregate amount of such
dividend, as determined by the Board of Directors, by (B) the Wireless Group
Allocation Fraction, over (ii) the aggregate amount of such dividend, as so
determined, or (y) the Wireless Group Allocation Fraction will be adjusted as
described in paragraph 9 of this Part C of this Article Third. The payment to
be made to the Common Stock Group(W) pursuant to the preceding sentence may, at
the discretion of the Board of Directors, be reflected by an allocation or by a
direct transfer of cash or other property.
(c) Discrimination Between or Among Classes of Common Shares. The Board of
Directors, subject to the provisions of paragraphs 2(a) and 2(b) of this Part C
of this Article Third and paragraph 3(b) of Part B of this Article Third, shall
have the sole authority and discretion to declare and pay dividends (or to
refrain from declaring or paying the same) exclusively to the holders of Common
Stock, exclusively to the holders of Wireless Group Common Stock, exclusively
to the holders of Liberty Media Group Common Stock, exclusively to the holders
of any other class of common shares or to the holders of any two or more of
such classes in equal or unequal amounts, notwithstanding the relationship
between the Common Stock Available Dividend Amount(W), the Wireless Group
Available Dividend Amount and the Liberty Media Group Available Dividend
Amount, the respective amounts of prior dividends declared on, or the
liquidation rights of, Common Stock, Wireless Group Common Stock, Class A
Liberty Media Group Common Stock and Class B Liberty Media Group Common Stock,
or any other factor.
3. Share Distributions.
Subject to the provisions of paragraph 4 of Part B of this Article Third,
the corporation may declare and pay a distribution consisting of shares of
Common Stock, Wireless Group Common Stock or any other securities of the
corporation or any other Person (hereinafter sometimes called a "share
distribution") to holders of Common Stock or Wireless Group Common Stock only
in accordance with this paragraph 3 of
<PAGE>
this Part C of this Article Third.
(a) Distributions on Common Stock or Wireless Group Common Stock. Except
as set forth in paragraph 4 of Part B of this Article Third, the corporation
may declare and pay a share distribution to holders of Common Stock, Wireless
Group Common Stock or any other class of common shares (other than Liberty
Media Group Common Stock) consisting of any securities of the corporation, any
Subsidiary of the corporation, or any other Person, including, without
limitation, a share distribution consisting of shares of any class or series of
Preferred Stock or shares of Common Stock, Wireless Group Common Stock or any
other class of common shares (other than Liberty Media Group Common Stock) (or
Convertible Securities convertible into or exercisable or exchangeable for
shares of any class or series of Preferred Stock or shares of Common Stock,
Wireless Group Common Stock or any other class of common shares (other than
Liberty Media Group Common Stock)).
Concurrently with the making of any share distribution with respect to
Wireless Group Common Stock, at the election of the Board of Directors, either
(x) the Common Stock Group(W) shall receive from the Wireless Group an
aggregate payment of the same kind of property that is the subject of such
distribution, which payment shall be equal to the excess, if any, of (i) the
quotient obtained by dividing (A) the aggregate amount of such distribution, as
determined by the Board of Directors, by (B) the Wireless Group Allocation
Fraction, over (ii) the aggregate amount of such dividend, as so determined, or
(y) the Wireless Group Allocation Fraction shall be adjusted as described in
paragraph 9 of this Part C of this Article Third. Any payment to be made to the
Common Stock Group(W) pursuant to the preceding sentence may, at the discretion
of the Board of Directors, be reflected by an allocation or by a direct
transfer of cash or other property.
(b) Discrimination Between or Among Classes of Common Shares. The Board of
Directors, subject to the foregoing provisions of this paragraph 3 of this Part
C of this Article Third and the provisions of paragraph 4 of Part B of this
Article Third, shall have the sole authority and discretion to declare and pay
(or to refrain from declaring or paying) share distributions exclusively to
holders of Common Stock, exclusively to holders of Wireless Group Common Stock,
exclusively to holders of Liberty Media Group Common Stock, exclusively to the
holders of any other class of common shares or to holders of any two or more of
such classes in equal or unequal amounts, notwithstanding the relationship
between the Common Stock Available Dividend Amount(W), the Wireless Group
Available Dividend Amount and the Liberty Media Group Available Dividend
Amount, the respective amounts of prior share distributions declared on, or the
liquidation rights of, Common Stock, Wireless Group Common Stock, Class A
Liberty Media Group Common Stock and Class B Liberty Media Group Common Stock
or any other factor.
<PAGE>
4. Exchange of Wireless Group Common Stock.
(a) Exchange at Option of Board of Directors. At any time following either
the occurrence of a Tax Event or the second anniversary of the date of initial
issuance of any shares of Wireless Group Common Stock (the "Initial Issuance
Date"), the Board of Directors, in its sole discretion, may, at any time,
effect a recapitalization of the corporation (a "Board Required Exchange") by
declaring that all of the outstanding shares of Wireless Group Common Stock
shall be exchanged for fully paid and nonassessable shares of Common Stock in
accordance with the Exchange Rate. In addition, at any time following the
Initial Issuance Date, so long as all of the assets and liabilities included in
the Wireless Group are held, directly or indirectly, by one or more Qualifying
Subsidiaries of the corporation (which shall not include any Subsidiary that is
a part of the Liberty Media Group as defined in paragraph 9 of Part B of this
Article Third) that hold no other material assets or liabilities (the "Wireless
Group Subsidiaries"), the Board of Directors may, subject to the availability
of assets of the corporation legally available therefor, effect a Board
Required Exchange by exchanging, on a pro rata basis, all of the outstanding
shares of Wireless Group Common Stock in exchange for an aggregate number of
outstanding fully paid and nonassessable shares of common stock of such
Wireless Group Subsidiary or Subsidiaries at the applicable Exchange Rate,
provided that no such exchange may occur unless the exchange is tax free to the
holders of Wireless Group Common Stock (except with respect to any cash
received by such holders in lieu of fractional shares). For purposes of this
paragraph 4 of this Part C of this Article Third, the term "Exchange Shares"
shall mean the shares of Common Stock or shares of the one or more Wireless
Group Subsidiaries, as the case may be, into which shares of Wireless Group
Common Stock may be exchanged pursuant to a Board Required Exchange.
(b) Exchange in Connection with Certain Significant Transactions. In the
event of a Disposition other than a Wireless Group Related Business Transaction
by the corporation in a transaction or series of related transactions of all or
substantially all of the properties and assets (as defined below) of the
Wireless Group to any Person(s) or group(s) of which the corporation is not a
majority owner (whether by merger, consolidation, sale of assets or stock,
liquidation, dissolution, winding up or otherwise) (a "Significant
Transaction"), effective upon the consummation of such sale, transfer,
assignment or other disposition and automatically without any action on the
part of the corporation or the Board of Directors or on the part of the holders
of shares of Wireless Group Common Stock, the corporation shall be
recapitalized (a "Significant Transaction Exchange") by exchanging all
outstanding shares of Wireless Group Common Stock for, at the sole discretion
of the Board of Directors, either (i) fully paid and nonassessable shares of
Common Stock at the Exchange Rate or (ii) other consideration, as described in
paragraph 4(c) of this Part C of this Article Third. Notwithstanding the
preceding sentence, the corporation shall be under no obligation to effect a
Significant Transaction Exchange that it might otherwise be required to effect
pursuant to such sentence (and the Exchange Rate shall not apply) if (i) the
underlying Significant Transaction is conditioned upon the affirmative vote of
a majority of the holders of Wireless Group Common Stock, voting as a separate
class, (ii) in connection with a spin-off or similar disposition of the
corporation's entire interest in the Wireless Group to the holders of Wireless
Group Common Stock, including any such disposition that is made in connection
with a Board Required Exchange, or (iii) in connection with the liquidation,
dissolution or winding up of the corporation, whether voluntary or involuntary.
(c) Alternate Consideration in Connection with Significant Transaction
Exchange. In connection with any Significant Transaction Exchange, the
corporation may, at the sole discretion of the Board of Directors, (i) in lieu
of issuing shares of Common Stock in exchange for shares of Wireless Group
Common Stock, either (x) subject to the limitations described in paragraph 2(b)
of this Part C of this Article Third and to the other provisions described in
this paragraph 4(c) of this Part C of this Article Third, declare and pay a
dividend in cash and/or in securities or other property (determined as provided
below) to
<PAGE>
holders of the outstanding shares of Wireless Group Common Stock equally on a
share for share basis in an aggregate amount equal to the Wireless Group Net
Proceeds of such Significant Transaction; or (y) provided that there are assets
of the corporation legally available therefor and to the extent the Wireless
Group Available Dividend Amount would have been sufficient to pay a dividend in
lieu thereof as described in clause (x) of this paragraph 4(c) of this Part C
of this Article Third, then (A) if such Significant Transaction involves the
Disposition of all (not merely substantially all) of the properties and assets
of the Wireless Group, redeem all outstanding shares of Wireless Group Common
Stock in exchange for cash and/or securities or other property (determined as
provided below) in an aggregate amount equal to the Wireless Group Net
Proceeds; or (B) if such Significant Transaction involves the Disposition of
substantially all (but not all) of the properties and assets of the Wireless
Group, apply an aggregate amount of cash and/or securities or other property
(determined as provided below) equal to the Wireless Group Net Proceeds to the
redemption of outstanding shares of Wireless Group Common Stock, the number of
shares to be redeemed to equal the lesser of (1) the whole number nearest the
number determined by dividing the aggregate amount so allocated to the
redemption of Wireless Group Common Stock by the average Market Value of one
share of Wireless Group Common Stock during the 10-Trading Day period beginning
on the 15th Trading Day following the consummation of such Disposition, and (2)
the number of shares of Wireless Group Common Stock outstanding, and (ii) in
lieu of issuing solely shares of Common Stock in exchange for shares of
Wireless Group Common Stock, subject to the limitations described in paragraph
2(b) of this Part C of this Article Third and to the other provisions described
in paragraph 4(c) of this Part C of this Article Third, combine the issuance of
shares of Common Stock in exchange for shares of Wireless Group Common Stock
with the payment of a dividend on or the redemption of shares of Wireless Group
Common Stock for cash and/or other securities or other property as described
below.
In the event that the Board of Directors elects the option described in
(ii) of the preceding paragraph, the outstanding shares of Wireless Group
Common Stock exchanged for fully paid and nonassessable shares of Common Stock
shall be exchanged at the Exchange Rate and a dividend shall be paid on all the
remaining shares of Wireless Group Common Stock equally on a share for share
basis, or some or all of the remaining outstanding shares of Wireless Group
Common Stock shall be exchanged for cash and/or other securities or other
property, as follows. The aggregate amount of such dividend, in the case of a
dividend, or the portion of the Wireless Group Net Proceeds to be applied to
such an exchange, in the case of an exchange, shall equal (A) an amount equal
to the total Wireless Group Net Proceeds multiplied by (B) one minus a
fraction, the numerator of which shall be the number of shares of Wireless
Group Common Stock exchanged for shares of Common Stock and the denominator of
which shall be the total number of outstanding shares of Wireless Group Common
Stock. In the event of an exchange, if the Significant Transaction involves the
Disposition of all (not merely substantially all) of the properties and assets
of the Wireless Group, then all remaining outstanding shares of Wireless Group
Common Stock will be redeemed in exchange for cash and/or securities or other
property in an aggregate amount equal to the portion of the Wireless Group Net
Proceeds to be applied to the exchange. If the Significant Transaction involves
the Disposition of substantially all (but not all) of the properties and assets
of the Wireless Group, then the portion of the Wireless Group Net Proceeds to
be applied to the exchange will be used to redeem a number of shares equal to
the lesser of (1) the whole number nearest the number determined by dividing
the aggregate amount so allocated to the redemption of Wireless Group Common
Stock by the average Market Value of one share of Wireless Group Common Stock
during the 10-Trading Day period beginning on the 15th Trading Day following
consummation of the Disposition, and (2) the number of shares of Wireless Group
Common Stock outstanding.
For purposes of this paragraph 4 of this Part C of this Article Third, in
the case of a Significant Transaction involving a Disposition of properties and
assets in a series of related transactions, such Disposition shall not be
deemed to have been consummated until the consummation of the last of such
transactions. Any exchange described in this paragraph 4 of this Part C of this
Article Third shall be
<PAGE>
effected in accordance with the applicable provisions set forth in paragraph 5
of this Part C of this Article Third. In the event that, at the time of any
Significant Transaction, there are outstanding any Convertible Securities
convertible into or exercisable for shares of Wireless Group Common Stock that
would give the holders rights to receive any dividend or exchange consideration
related to the Significant Transaction upon exercise, conversion or otherwise,
or would adjust as a result of such dividend or exchange to give the holder
equivalent economic rights, then the shares of Wireless Group Common Stock
underlying such Convertible Securities will be taken into account for purposes
of determining the terms of any dividend payment or exchange effected in lieu
of a Significant Transaction Exchange.
(d) Payment to Common Stock Group(W). Concurrently with the payment of any
dividend referred to in paragraph 4(c) of this Part C of this Article Third, at
the election of the Board of Directors, either (A) the Common Stock Group(W)
shall receive from the Wireless Group an aggregate payment of the same kind of
property that is the subject of such dividend, which payment shall be equal to
the excess of (i) the quotient obtained by dividing (x) the aggregate amount of
such dividend, as determined by the Board of Directors, by (y) the Wireless
Group Allocation Fraction, over (ii) the aggregate amount of such dividend, as
so determined, or (B) the Wireless Group Allocation Fraction will be adjusted
as described in paragraph 9 of this Part C of this Article Third. Any payment
to be made to the Common Stock Group(W) pursuant to the preceding sentence may,
at the discretion of the Board of Directors, be reflected by an allocation or
by a direct transfer of cash or other property.
(e) Exchange Rate. For purposes of this paragraph 4 of this Part C of this
Article Third, the term "Exchange Rate" shall mean the number of Exchange
Shares for which each share of Wireless Group Common Stock shall be
exchangeable pursuant to a Board Required Exchange or a Significant Transaction
Exchange, determined as follows. If the shares of Wireless Group Common Stock
are to be exchanged for shares of Common Stock, each share of Wireless Group
Common Stock shall be exchangeable for such number of shares of Common Stock
(calculated to the nearest 1/10,000), subject to paragraph 5 below, equal to
110% of the ratio of the Average Market Price Per Share of such Wireless Group
Common Stock to the Average Market Price Per Share of Common Stock. For
purposes of computing the Exchange Rate, the "Average Market Price Per Share"
of Common Stock or Wireless Group Common Stock, as the case may be, shall mean
(i) in the case of a Board Required Exchange, the average of the daily Market
Value per share for such Common Stock or Wireless Group Common Stock for the 40
consecutive Trading Days ending on the 15th Trading Day prior to the date an
Exchange Notice is mailed, or (ii) in the case of a Significant Transaction
Exchange, the average of the daily Market Value per share for such Common Stock
or Wireless Group Common Stock for the 10 consecutive Trading Days beginning on
the 15th Trading Day following consummation of the Significant Transaction. If
the shares of Wireless Group Common Stock are to be exchanged for shares of one
or more Wireless Group Subsidiaries, such shares of Wireless Group Common Stock
shall be exchanged, on a pro rata basis, for an aggregate number of outstanding
fully paid and nonassessable shares of common stock of each such Wireless Group
Subsidiary equal to the number of outstanding shares of common stock of such
Subsidiary held by the corporation multiplied by the Wireless Group Allocation
Fraction and, if the Board of Directors so determines, the remaining shares of
such Subsidiary shall be distributed on a pro rata basis to the holders of
shares of Common Stock (or shares of Common Stock shall be exchanged for such
remaining shares of such Subsidiary); provided that no such distribution (or
mandatory exchange) may occur unless the distribution (or mandatory exchange)
is tax free to the holders of Common Stock (except with respect to any cash
received by such holders in lieu of fractional shares). If at the time of such
an exchange for shares of one or more Wireless Group Subsidiaries, there are
outstanding any Convertible Securities convertible into or exercisable for
shares of Wireless Group Common Stock that would become exercisable or
convertible for shares of one or more Wireless Group Subsidiaries as a result
of such exchange, and the obligation to issue such shares under such options,
warrants, convertible securities or similar rights is not assumed or otherwise
provided for by one or more
<PAGE>
Wireless Group Subsidiaries, then the shares of Wireless Group Common Stock
underlying such Convertible Securities will be taken into account for purposes
of determining the Exchange Rate for such exchange.
For purposes of this Paragraph 4 of this Part C of this Article Third,
"substantially all of the properties and assets" of the Wireless Group as of
any date shall mean a portion of such properties and assets that represents at
least 80% of the Fair Value of the properties and assets attributed to the
Wireless Group as of such date.
5. Certain Procedures Relating to Exchanges.
(a) The Board of Directors may, in its sole discretion, elect to issue
fractional Exchange Shares in connection with an exchange or to make a cash
payment in lieu of fractional shares, as described below. If the Board of
Directors elects not to issue fractional Exchange Shares, then no such
fractional shares shall be issued in connection with the exchange of shares of
Wireless Group Common Stock into Exchange Shares, and, in lieu thereof, each
holder of Wireless Group Common Stock who would otherwise be entitled to a
fractional interest of an Exchange Share shall, upon surrender of such holder's
certificate or certificates representing shares of Wireless Group Common Stock,
receive a cash payment (without interest) (the "Fractional Payment") equal to
(i) in the case of an exchange for shares of Common Stock, the product
resulting from multiplying (A) the fraction of a share of Common Stock to which
such holder would otherwise have been entitled by (B) the Average Market Price
Per Share of Common Stock on the Exchange Date, or (ii) in the case of an
exchange for shares of one or more Wireless Group Subsidiaries, such value as
is determined by the Board of Directors.
(b) No adjustments in respect of dividends shall be made upon the exchange
of any shares of Wireless Group Common Stock; provided, however, that, if the
Exchange Date with respect to Wireless Group Common Stock shall be subsequent
to the record date for the payment of a dividend or other distribution thereon
or with respect thereto but prior to the payment or distribution thereof, the
registered holders of such shares at the close of business on such record date
shall be entitled to receive the dividend or other distribution payable on such
shares on the date set for payment of such dividend or other distribution,
notwithstanding the exchange of such shares or the corporation's default in
payment of the dividend or distribution due on such date.
(c) At such time or times as the corporation exercises its right to cause
a Board Required Exchange, and at the time of any Significant Transaction
Exchange, the corporation shall give notice of such exchange to the holders of
Wireless Group Common Stock whose shares are to be exchanged, by mailing by
first-class mail a notice of such exchange (an "Exchange Notice"), in the case
of an exchange at the discretion of the Board of Directors, not less than 30
nor more than 60 days prior to the date fixed for such exchange (the "Exchange
Date"), and, in the case of any other required exchange, as soon as practicable
before or after the Exchange Date, in either case, to their last addresses as
they appear upon the corporation's books. Each such Exchange Notice shall
specify the Exchange Date and the Exchange Rate applicable to such exchange,
and shall state that issuance of certificates representing the applicable type
of Exchange Shares to be received upon exchange of shares of Wireless Group
Common Stock shall be upon surrender of certificates representing such shares
of Wireless Group Common Stock.
(d) Before any holder of shares of Wireless Group Common Stock shall be
entitled to receive certificates representing such Exchange Shares, such holder
must surrender, at such office as the corporation shall specify, certificates
for such shares of Wireless Group Common Stock duly endorsed to the corporation
or in blank or accompanied by proper instruments of transfer to the Corporation
or in blank, unless the corporation shall waive such requirement. The
corporation shall, as soon as practicable after such
<PAGE>
surrender of certificates representing such shares of Wireless Group Common
Stock, issue and deliver, at the office of the transfer agent representing
Exchange Shares, to the holder for whose account such shares of Wireless Group
Common Stock were so surrendered, or to such holder's nominee or nominees,
certificates representing the number of Exchange Shares to which such holder
shall be entitled, together with the Fractional Payment, if any.
(e) From and after any Exchange Date, all rights of a holder of shares of
Wireless Group Common Stock shall cease except for the right, upon surrender of
the certificates representing such shares of Wireless Group Common Stock, to
receive certificates representing Exchange Shares together with a Fractional
Payment, if any, as described in paragraphs 5(a) and 5(d) of this Part C of
this Article Third and rights to dividends as described in paragraph 5(b) of
this Part C of this Article Third. No holder of a certificate that immediately
prior to the applicable Exchange Date represented shares of Wireless Group
Common Stock shall be entitled to receive any dividend or other distribution
with respect to Exchange Shares until surrender of such holder's certificate
for a certificate or certificates representing Exchange Shares. Upon surrender,
the holder shall receive the amount of any dividends or other distributions
(without interest) that were payable with respect to a record date after the
Exchange Date, but that were not paid by reason of the foregoing with respect
to the number of Exchange Shares represented by the certificate or certificates
issued upon such surrender. From and after an Exchange Date applicable to
Wireless Group Common Stock, the corporation shall, however, be entitled to
treat certificates for Wireless Group Common Stock that have not yet been
surrendered for exchange as evidencing the ownership of the number of Exchange
Shares for which the shares of Wireless Group Common Stock represented by such
certificates have been exchanged, notwithstanding the failure to surrender such
certificates.
(f) If any certificate for Exchange Shares is to be issued in a name other
than that in which the certificate representing shares of Wireless Group Common
Stock surrendered in exchange therefor is registered, it shall be a condition
of such issuance that the person requesting the issuance pays any transfer or
other taxes required by reason of the issuance of certificates for such
Exchange Shares in a name other than that of the record holder of the
certificate surrendered, or establishes, to the satisfaction of the corporation
or its agent, that such tax has been paid or is not applicable. Under no
circumstances shall the corporation be liable to a holder of shares of Wireless
Group Common Stock for any Exchange Shares or dividends or distributions
thereon delivered to a public official pursuant to any applicable abandoned
property, escheat or similar law.
(g) At the time an Exchange Notice is delivered with respect to any shares
of Wireless Group Common Stock, or at the time of the Exchange Date, if
earlier, the corporation shall have reserved and kept available, solely for the
purpose of issuance upon exchange of the outstanding shares of Wireless Group
Common Stock, such number of Exchange Shares as shall be issuable upon the
exchange of the number of shares of Wireless Group Common Stock specified or to
be specified in the applicable Exchange Notice, provided that the corporation
shall not under any circumstances be precluded from satisfying its obligation
in respect of the exchange of the outstanding shares of Wireless Group Common
Stock by delivery of purchased Exchange Shares that are held in the treasury of
the corporation.
6. Liquidation.
In the event of a liquidation, dissolution or winding up of the
corporation, whether voluntary or involuntary, after payment or provision for
payment of the debts and other liabilities of the corporation and subject to
the prior payment in full of the preferential amounts to which any class or
series of Preferred Stock is entitled, (a) as provided in paragraph 6 of Part B
of this Article Third, the holders of the shares of Class A Liberty Media Group
Common Stock and the holders of the shares of Class B Liberty Media Group
Common Stock shall share equally, on a share for share basis, in a percentage
of the funds of the
<PAGE>
corporation remaining for distribution to its common shareholders equal to 100%
multiplied by the average daily ratio (expressed as a decimal) of Y/Z for the
20-Trading Day period ending on the Trading Day prior to the date of the public
announcement of such liquidation, dissolution or winding up, (b) the holders of
the shares of Common Stock shall share in the aggregate in a percentage of the
funds of the corporation remaining for distribution to its common shareholders
equal to 100% multiplied by the average daily ratio (expressed as a decimal) of
X/Z for such 20-Trading Day period, (c) the holders of the shares of Wireless
Group Common Stock shall share in the aggregate in a percentage of the funds of
the corporation remaining for distribution to its common shareholders equal to
100% multiplied by the average daily ratio (expressed as a decimal) of W/Z for
such 20-Trading Day period, and (d) if applicable, the holders of the shares of
any other class of common shares of the corporation (other than Common Stock,
Wireless Group Common Stock or Liberty Media Group Common Stock), on the basis
that may be set forth in this Certificate with respect to any such shares,
shall share in the aggregate in a percentage of the funds of the corporation
remaining for distribution to its common shareholders equal to 100% multiplied
by the average daily ratio (expressed as a decimal) of V/Z for such 20-Trading
Day period, where Y is the aggregate Market Capitalization of the Class A
Liberty Media Group Common Stock and the Class B Liberty Media Group Common
Stock, X is the aggregate Market Capitalization of the Common Stock, W is the
aggregate Market Capitalization of the Wireless Group Common Stock, V is the
aggregate Market Capitalization, if applicable, of any other class of common
shares (other than Common Stock, Liberty Media Group Common Stock and Wireless
Group Common Stock), and Z is the aggregate Market Capitalization of (i) the
Class A Liberty Media Group Common Stock and the Class B Liberty Media Group
Common Stock, (ii) the Common Stock, (iii) the Wireless Group Common Stock and
(iv) any other class of common shares of the corporation (other than Common
Stock, Liberty Media Group Common Stock and Wireless Group Common Stock).
Neither the consolidation or merger of the corporation with or into any other
corporation or corporations nor the sale, transfer or lease of all or
substantially all of the assets of the corporation shall itself be deemed to be
a liquidation, dissolution or winding up of the corporation within the meaning
of this paragraph 6 of this Part C of this Article Third. Notwithstanding the
foregoing, any transaction or series of related transactions that results in
all of the assets and liabilities included in the Wireless Group being held by
one or more Wireless Group Subsidiaries, and the distribution of some or all of
the shares of such Wireless Group Subsidiaries (and no other material assets or
liabilities) to the holders of the outstanding Wireless Group Common Stock
shall not constitute a voluntary or involuntary liquidation, dissolution or
winding up of the corporation for purposes of this paragraph 6 of this Part C
of this Article Third, but shall be subject to paragraph 4 of this Part C of
this Article Third. Notwithstanding the foregoing, any transaction or series of
related transactions that results in all of the assets and liabilities included
in the Liberty Media Group being held by one or more Liberty Media Group
Subsidiaries (as defined in paragraph 5(a) of Part B of this Article Third),
and the distribution of such Liberty Media Group Subsidiaries (and no other
material assets or liabilities) to the holders of the outstanding Liberty Media
Group Common Stock shall not constitute a voluntary or involuntary liquidation,
dissolution or winding up of the corporation for purposes of this paragraph 6
of this Part C of this Article Third, but shall be subject to paragraph 5(a) of
Part B of this Article Third.
7. Determinations by the Board of Directors.
Any determinations made by the Board of Directors under any provision of
this Part C of this Article Third shall be final and binding on all
shareholders of the corporation, except as may otherwise be required by law.
The corporation shall prepare a statement of any determination by the Board of
Directors, respecting the fair market value of any properties, assets or
securities, and shall file such statement with the Secretary of the
corporation.
8. Adjustment of the Wireless Group Allocation Fraction.
<PAGE>
(a) The denominator of the Wireless Group Allocation Fraction shall be
adjusted from time to time as deemed appropriate by the Board of Directors (i)
to reflect subdivisions (by stock split or otherwise) and combinations (by
reverse stock split or otherwise) of Wireless Group Common Stock and stock
dividends payable in shares of Wireless Group Common Stock, (ii) to reflect the
fair market value of contributions or allocations by the corporation of cash or
property or other assets or liabilities from the Common Stock Group(W) to the
Wireless Group (or vice versa), or of cash or property or other assets or
liabilities of the Common Stock Group(W) to, or for the benefit of, employees
of the Wireless Group in connection with employee benefit plans or arrangements
of the corporation or any of its subsidiaries (or vice versa), (iii) to reflect
the number of shares of capital stock of the corporation contributed to, or for
the benefit of, employees of the Wireless Group in connection with benefit
plans or arrangements of the corporation or any of its Subsidiaries, (iv) to
reflect repurchases by the corporation of shares of Wireless Group Common Stock
for the account of the Wireless Group, (v) to reflect issuances of Wireless
Group Common Stock for the account of the Wireless Group, (vi) to reflect
dividends or other distributions to holders of the Wireless Group Common Stock
to the extent no payment is made to the Common Stock Group(W), and (vii) under
such other circumstances as the Board of Directors determines appropriate to
reflect the economic substance of any other event or circumstance, provided
that, in each case, the adjustment shall be made in a manner that is fair and
equitable to holders of Common Stock and Wireless Group Common Stock (and
intended to reflect the relative deemed economic ownership interest, if any, of
the Common Stock Group(W) in the Wireless Group). Any adjustment made by the
Board of Directors pursuant to the preceding sentence shall, subject to the
foregoing, be at the sole discretion of the Board of Directors, and all such
determinations shall be final and binding on all shareholders of the
corporation. For purposes of this paragraph 8 of this Part C of this Article
Third, the consideration paid by the Common Stock Group(W) to acquire any
assets or other property or contributed or allocated to the Wireless Group
shall be presumed to be the "fair market value" as of its acquisition.
(b) Without duplication of any adjustment pursuant to paragraph 8(a) of
this Part C of this Article Third, in the event that the corporation shall
issue shares of Wireless Group Common Stock for the account of the Wireless
Group, then the denominator of the Wireless Group Allocation Fraction shall be
increased by the number of shares of Wireless Group Common Stock so issued.
(c) Without duplication of any adjustment pursuant to paragraph 8(a) of
this Part C of this Article Third, if, in connection with any share issuance
described in paragraph 8(b) of this Part C of this Article Third, or otherwise,
the corporation contributes or allocates cash or other property or assets from
the Common Stock Group(W) to the Wireless Group, the denominator of the
Wireless Group Allocation Fraction shall be increased (or further increased) by
an amount obtained by dividing (i) the fair market value of such cash, property
or assets (as determined by the Board of Directors) by (ii) the net per share
offering price of the Wireless Group Common Stock.
9. Certain Definitions.
Unless the context otherwise requires, the terms defined in this paragraph
9 of this Part C of this Article Third shall have, for all purposes of this
Part C of this Article Third, the meanings herein specified:
"Common Stock Group(W)" shall mean, as of any date, the interest of the
corporation in all of the businesses in which the corporation is or has been
engaged, directly or indirectly (either itself or through direct or indirect
subsidiaries, affiliates, joint ventures or other investments or any of their
predecessors or successors), and the respective assets and liabilities of the
corporation therein, other than (a) the Wireless Group Allocated Portion of the
Wireless Group, and (b) any businesses, assets or liabilities of the Liberty
Media Group.
<PAGE>
"Convertible Securities" shall mean any securities of the corporation
(other than Liberty Media Group Common Stock) or any Subsidiary of the
corporation that are convertible into, exchangeable for or evidence the right
to purchase any shares of Common Stock, Wireless Group Common Stock or of any
class of Liberty Media Group Common Stock, whether upon conversion, exercise or
exchange, or pursuant to anti-dilution provisions of such securities or
otherwise.
"Disposition" shall mean the sale, transfer, assignment or other
disposition (whether by merger, consolidation, sale or contribution of assets
or stock, or otherwise) by the corporation (or its successors) or any of its
Subsidiaries or properties or assets. Disposition shall not include a merger,
consolidation, exchange of shares or other business combination transaction
involving the corporation in which the corporation (or its successors)
continues, immediately following such transaction, to hold the same, direct and
indirect, interest in the business, assets and liabilities comprising the
Wireless Group that it held immediately prior to such transaction (other than
as a result of any action by any Person included in the Wireless Group).
"Fair Value" shall mean, in the case of equity securities or debt
securities of a class that has previously been publicly traded for a period of
at least three months, the Market Value thereof (if such Market Value, as so
defined, can be determined) or, in the case of an equity security or debt
security that has not been publicly traded for at least such period, means the
fair value per share of stock or per other unit of such other security, on a
fully distributed basis, as determined by an independent investment banking
firm experienced in the valuation of securities selected in good faith by the
Board of Directors; provided, however, that, in the case of property other than
securities, the "Fair Value" thereof shall be determined in good faith by the
Board of Directors based upon such appraisals or valuation reports of such
independent experts as the Board of Directors shall in good faith determine to
be appropriate in accordance with good business practice. Any such
determination of Fair Value shall be described in a statement filed with the
records of the actions of the Board of Directors.
"Group" shall mean the Common Stock Group(W), the Liberty Media Group or
the Wireless Group.
"Initial Issuance Date" shall mean the date of first issuance of any
shares of Wireless Group Common Stock.
"Market Capitalization" of any class or series of capital stock of the
corporation on any Trading Day shall mean the product of (a) the Market Value
of one share of such class or series on such Trading Day and (b) the number of
shares of such class or series outstanding on such Trading Day.
"Market Value" of any class or series of capital stock of the corporation
on any day shall mean the average of the high and low reported sales prices
regular way of a share of such class or series on such day (if such day is a
Trading Day, and, if such day is not a Trading Day, on the Trading Day
immediately preceding such day), or, in case no such reported sale takes place
on such Trading Day, the average of the reported closing bid and asked prices
regular way of a share of such class or series on such Trading Day, in either
case, on the New York Stock Exchange or, if the shares of such class or series
are not quoted on the New York Stock Exchange on such Trading Day, on the
Nasdaq National Market, or, if the shares of such class or series are not
quoted on the Nasdaq National Market on such Trading Day, the average of the
closing bid and asked prices of a share of such class or series in the
over-the-counter market on such Trading Day as furnished by any New York Stock
Exchange member firm selected from time to time by the corporation, or, if such
closing bid and asked prices are not made available by any such New York Stock
Exchange member firm on such Trading Day (including, without limitation,
because such securities are not publicly held), the market value of a share of
such class or series as determined by the Board of Directors;
<PAGE>
provided that, for purposes of determining the ratios set forth in paragraph 6
of this Part C of this Article Third, (a) the "Market Value" of any share of
Common Stock, Wireless Group Common Stock or of any class of Liberty Media
Group Common Stock on any day prior to the "ex" date or any similar date for
any dividend or distribution paid or to be paid with respect to Common Stock,
Wireless Group Common Stock or such class of Liberty Media Group Common Stock,
as applicable, shall be reduced by the fair market value of the per share
amount of such dividend or distribution as determined by the Board of
Directors, and (b) the "Market Value" of any share of Common Stock, any share
of Wireless Group Common Stock or of any class of Liberty Media Group Common
Stock on any day prior to (i) the effective date of any subdivision (by stock
split or otherwise) or combination (by reverse stock split or otherwise) of
outstanding shares of Common Stock, Wireless Group Common Stock or of such
class of Liberty Media Group Common Stock, as applicable, or (ii) the "ex" date
or any similar date for any dividend or distribution with respect to the Common
Stock, Wireless Group Common Stock or any such class of Liberty Media Group
Common Stock in shares of Common Stock, Wireless Group Common Stock or such
class of Liberty Media Group Common Stock, as applicable, shall be
appropriately adjusted to reflect such subdivision, combination, dividend or
distribution.
"Person" shall mean any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, government or agency or political subdivision
thereof, or other entity, whether acting in an individual, fiduciary or other
capacity.
"Qualifying Subsidiary" of a Person shall mean a Subsidiary of such Person
in which such Person's ownership and voting interest is sufficient to satisfy
the ownership and voting requirements of the Internal Revenue Code of 1986, as
amended, and the regulations thereunder, for a distribution of such Person's
interest in such Subsidiary to the holders of Wireless Group Common Stock and,
in the event that the Wireless Group Allocation Fraction is less than one, the
holders of Common Stock (or any such securities into which the Wireless Group
Common Stock or the Common Stock may have been converted, reclassified or
changed or for which they may have been exchanged), as the case may be, to be
tax free to such holders.
"Subsidiary" shall mean, with respect to any Person, any corporation,
limited liability company or partnership 50% or more of whose outstanding
voting securities or membership or partnership interests, as the case may be,
are, directly or indirectly, owned by such Person.
"Trading Day" shall mean each weekday other than any day on which any
relevant class or series of capital stock of the corporation is not available
for trading on the New York Stock Exchange or the Nasdaq National Market or in
the over-the-counter market.
"Tax Event" shall mean receipt by the corporation of an opinion of tax
counsel of the corporation's choice, to the effect that, as a result of any
amendment to, clarification of, or change (including a prospective change) in,
the laws (or any interpretation or application of the laws) of the United
States or any political subdivision or taxing authority thereof or therein
(including enactment of any legislation and the publication of any judicial or
regulatory decision, determination or pronouncement) which amendment,
clarification or change is effective, announced, released, promulgated or
issued on or after the date of initial issuance of the Wireless Group Common
Stock, regardless of whether such amendment, clarification or change is issued
to or in connection with a proceeding involving the corporation, the Common
Stock Group(W) or the Wireless Group and whether or not subject to appeal,
there is more than an insubstantial risk that:
(i) for tax purposes, any issuance of Wireless Group Common Stock
would be treated as a sale or other taxable disposition by the corporation
or any of its Subsidiaries of any of the assets, operations or relevant
subsidiaries to which the Wireless Group Common Stock relates,
<PAGE>
(ii) the existence of the Wireless Group Common Stock would subject
the corporation, its Subsidiaries or affiliates, or any of their
respective successors or shareholders to the imposition of tax or to other
adverse tax consequences, or
(iii) for tax purposes, either Common Stock or Wireless Group Common
Stock is not or, at any time in the future, will not be treated solely as
common stock of the corporation.
"Wireless Group" shall mean, as of any date that any shares of Wireless
Group Common Stock have been issued and continue to be outstanding, without
duplication, the direct or indirect interest of the corporation (either itself
or through direct or indirect subsidiaries, affiliates, joint ventures or other
investments, or any of their predecessors or successors) (a) in all of the
businesses, assets and liabilities reflected in the financial statements of the
Wireless Group dated September 30, 1999, publicly filed by the corporation,
including any successor to the Wireless Group by merger, consolidation or sale
of all or substantially all of its assets (whether or not in connection with a
Wireless Group Related Business Transaction), (b) the other assets and
liabilities (contingent or otherwise) of the corporation and its Subsidiaries
primarily related to the businesses, assets and liabilities described in clause
(a) and all net income and net losses arising in respect thereof after such
date, (c) all assets, liabilities and businesses acquired by the Wireless Group
or acquired by the corporation or any of its Subsidiaries for the account of,
or contributed, allocated or otherwise transferred to, the Wireless Group
(including the net proceeds of any new issuance for the account of the Wireless
Group of any new shares of Wireless Group Common Stock or Convertible
Securities), in each case, after the date of such financial statements and as
determined by the Board of Directors in accordance with the provisions of
paragraph 8 of this Part C of this Article Third, and (d) the proceeds of any
Disposition of any of the foregoing; provided, however, that the Wireless Group
shall not include (a) any assets, liabilities or businesses disposed of after
the date of such financial statements or (b) any assets, liabilities or
businesses allocated to the Common Stock Group(W) or otherwise distributed or
otherwise transferred from the Wireless Group, whether to the Common Stock
Group(W), to holders of shares of Wireless Group Common Stock or otherwise, in
each case after the date of such financial statements and as determined by the
Board of Directors in accordance with the provisions of paragraph 9 of this
Part C of this Article Third. The Wireless Group shall not include any
business, assets or liabilities of the Liberty Media Group.
"Wireless Group Allocated Portion" shall mean, with respect to the
Wireless Group as a whole, or any dividend, distribution, payment,
consideration or other amount or allocation requiring apportionment between the
holders of Wireless Group Common Stock (other than the corporation and its
Subsidiaries), on the one hand, and the Common Stock Group(W), on the other
hand, the following: (a) in the case of the Wireless Group as a whole, the
proportion of such Group represented by the Wireless Group Allocation Fraction,
and (b) in the case of any other amount or allocation, the product of (i) such
amount or allocation and (ii) the Wireless Group Allocation Fraction.
"Wireless Group Allocation Fraction" shall mean, as of any date of
determination, a fraction, the numerator of which shall be the number of shares
of Wireless Group Common Stock outstanding on such date and the denominator of
which shall be a number initially determined by the Board of Directors, in its
sole discretion, prior to the Initial Issuance Date, subject to adjustment from
time to time as described in paragraph 9 of this Part C of this Article Third,
provided that such fraction shall in no event be greater than one. If the
holders of any securities of the corporation or any other Person that are
convertible into or exercisable or exchangeable for shares of Wireless Group
Common Stock are entitled to participate in any dividend or other distribution
with respect to the Wireless Group Common Stock, such shares so issuable upon
such conversion, exercise or exchange shall be taken into account in
calculating the Wireless Group Allocation Fraction and any amount payable to
the Common Stock Group(W) in such manner as the Board
<PAGE>
of Directors determines to be appropriate.
"Wireless Group Available Dividend Amount" shall mean, as of any date, the
Wireless Group Allocated Portion of the excess of (a) the amount by which the
total assets of the Wireless Group exceed the total liabilities of the Wireless
Group as of such date over (b) the sum of (i) the par value of all issued
shares of Wireless Group Common Stock and each class or series of Preferred
Stock attributed to the Wireless Group, (ii) the amount of the consideration
received for any shares of Preferred Stock attributed to the Wireless Group
without par value that have been issued, except such part of the consideration
therefor as may have been allocated to surplus in a manner permitted by law,
and (iii) any amount not included in subclauses (i) and (ii) above that the
corporation (by appropriate action of the Board of Directors) has transferred
to stated capital specifically in respect of Wireless Group Common Stock, minus
(c) all reductions from such sums set forth in clauses (i), (ii) and (iii)
above as have been effected in a manner permitted by law; provided, however,
that, in the event that the law governing the corporation changes from that
governing the corporation on the date the adoption of the Amendment to this
Certificate pursuant to which the Wireless Group Common Stock was authorized
(whether because of amendment of the applicable law or because of a change in
the jurisdiction of incorporation of the corporation through merger or
otherwise), the Wireless Group Available Dividend Amount shall mean the amount
of dividends, as determined by the Board of Directors, that could be paid by a
corporation (governed under such applicable law) having the assets and
liabilities of the Wireless Group, an amount of outstanding common stock (and
having an aggregate par value) equal to the amount (and aggregate par value) of
the outstanding Wireless Group Common Stock and of each class or series of
Preferred Stock attributed to the Wireless Group and having an amount of
earnings or loss or other relevant corporate attributes as reasonably
determined by the Board of Directors in light of all factors deemed relevant by
the Board of Directors.
"Wireless Group Net Proceeds" shall mean, as of any date, with respect to
any Disposition of any of the properties and assets of the Wireless Group, an
amount, if any, equal to the Wireless Group Allocated Portion of the gross
proceeds of such Disposition after any payment of, or reasonable provision for,
(a) any taxes payable by the corporation or any other member of the Common
Stock Group in respect of such Disposition or in respect of any mandatory
dividend or redemption resulting from such Disposition (or that would have been
payable but for the utilization of tax benefits attributable to the Common
Stock Group(W) or the Liberty Media Group), (b) any transaction costs borne by
the Common Stock Group(W) in connection with such Disposition, including,
without limitation, any legal, investment banking and accounting fees and
expenses borne by the Common Stock Group(W) in connection with such
Disposition, (c) any liabilities and other obligations (contingent or
otherwise) of the Wireless Group borne by the Common Stock Group(W) in
connection with such Disposition, including, without limitation, any indemnity
or guarantee obligations incurred by the Common Stock Group(W) in connection
with the Disposition or any liabilities assumed by the Common Stock Group(W)
for future purchase price adjustments, and (d) any preferential amounts,
accumulated and unpaid dividends and other obligations in respect of Preferred
Stock attributed to the Wireless Group. To the extent the proceeds of any
Disposition include any securities or other property other than cash, the Board
of Directors shall determine the value of such securities or property; provided
that the value of any marketable securities included in such proceeds shall be
the average of the daily Market Value of such securities for the 10 consecutive
Trading Days beginning on the 15th Trading Day following consummation of the
Disposition.
"Wireless Group Related Business Transaction" shall mean any Disposition
of all or substantially all the properties and assets attributed to the
Wireless Group in a transaction or series of related transactions that results
in the corporation or one or more of its Subsidiaries receiving in
consideration of such properties and assets primarily equity securities
(including, without limitation, capital stock, debt securities convertible into
or exchangeable for equity securities or interests in a general or limited
partnership or limited liability company, without regard to the voting power or
other management or governance rights associated
<PAGE>
therewith) of any entity that (a) acquires such properties or assets or
succeeds (by merger, formation of a joint venture or otherwise) to the business
conducted with such properties or assets or controls such acquiror or
successor, and (b) which the Board of Directors determines is primarily engaged
or proposes to engage primarily in one or more businesses similar or
complementary to the businesses conducted by the Wireless Group prior to such
Disposition.
FOURTH: (a) The Certificate of Incorporation of the corporation is
hereby amended to modify the purposes for which the corporation is formed.
(b) To effect the foregoing, Article SECOND is hereby amended to read in
its entirety as set forth below:
SECOND: The purposes for which the corporation is formed are to
engage in any lawful act or activity for which corporations may be
organized under the Business Corporation Law of the State of New York,
provided that the corporation is not formed to engage in any act or
activity which requires the consent or approval of any New York state
official, department, board, agency or other body, without such consent or
approval first being obtained.
FIFTH: The manner in which the foregoing amendment of said
Certificate of Incorporation of the corporation was authorized was by the
vote of the holders of a majority of all outstanding shares of the
corporation entitled to vote thereon at a meeting of shareholders,
subsequent to the unanimous vote of our board of directors.
<PAGE>
IN WITNESS WHEREOF, we have subscribed this document on March 31, 2000 and
do hereby affirm, under the penalties of perjury, that the statements contained
herein have been examined by us and are true and correct.
By
---------------------------------
Name:
Title: Vice President
By
---------------------------------
Name:
Title: Assistant Secretary
<PAGE>
CERTIFICATE OF AMENDMENT
OF THE CERTIFICATE OF INCORPORATION
OF AT&T CORP.
UNDER SECTION 805 OF THE
BUSINESS CORPORATION LAW
We, the undersigned, being a Vice President and Assistant Secretary,
respectively, of AT&T Corp., do hereby certify as follows:
1. The name of the corporation is AT&T Corp. The name under which the
Corporation was formed is American Telephone and Telegraph Company.
2. The Certificate of Incorporation of the corporation was filed in the
office of the Secretary of State of the State of New York on March 3, 1885.
3. Said Certificate of Incorporation is amended to increase the authorized
number of common shares of the capital stock of the corporation having a par
value of $1 from 14,750,000,000 shares to 16,400,000,000 shares, by increasing
the Class A Liberty Media Group Common Stock (as defined below) by
1,500,000,000 and by increasing the Class B Liberty Media Common Stock (as
defined below) by 150,000,000.
4. To effect the foregoing, the first paragraph of Article THIRD of said
Certificate of Incorporation, relating to the aggregate number of shares of the
corporation is authorized to issue, the par value thereof, and the classes into
which the shares are divided is hereby stricken out in its entirety, and the
following new first paragraph of Article THIRD is substituted in lieu thereof:
"The aggregate number of shares which the corporation is authorized
to issue is sixteen billion five hundred (16,500,000,000) shares,
consisting of one hundred million (100,000,000) preferred shared having a
par value of $1.00 per share ("Preferred Stock") and sixteen billion four
hundred million (16,400,000,000) common shares, of which six billion
(6,000,000,000) common shares shall be Common Stock having a par value of
$1.00 per share ("Common Stock"), four billion (4,000,000,000) common
shares shall be Class A Liberty Media Group Common Stock having a par
value of $1.00 per share ("Class A Liberty Media Group Common Stock"),
four hundred million (400,000,000) common shares shall be Class B Liberty
Media Group Common Stock having a par value of $1.00 per share ("Class B
Liberty Media Group Common Stock"), and six billion (6,000,000,000) common
shares shall be Wireless Group Common Stock having a par value of $1.00
per share ("Wireless Group Common Stock"). The Class A Liberty Media Group
Common Stock and Class B Liberty Media Group Common Stock are collectively
referred to herein as the "Liberty Media Group Common Stock".
5. The manner in which the foregoing amendment of said Certificate of
Incorporation was authorized was by vote of the holders of a majority of all
outstanding shares of the corporation entitled to vote thereon at a meeting of
shareholders, subsequent to the unanimous vote of the Board of Directors.
<PAGE>
IN WITNESS WHEREOF, we have signed this Certificate of Amendment of said
Certificate of Incorporation of AT&T Corp. this 30th of May, 2000 and we affirm
the statements contained herein as true under penalties of perjury.
----------------------------
Marilyn J. Wasser
Vice President and Secretary
----------------------------
Robert A. Feit
Assistant Secretary
