<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
Schedule 13D
Under the Securities Exchange Act of 1934
(Amendment No. 3)*
TSX CORPORATION
(Name of Issuer)
Common Stock, $.01 par value
----------------------------
(Title of Class of Securities)
87 3027 10 6
------------
(CUSIP Number)
Stephen M. Brett, Esq., Executive Vice President and General Counsel,
Tele-Communications, Inc.
Terrace Tower II, 5619 DTC Parkway, Englewood, CO 80111, (303-267-5500)
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
NOVEMBER 15, 1996
------------------
(Date of Event which Requires Filing
of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report
the acquisition which is the subject of this Schedule 13D, and is filing this
schedule because of Rule 13d-1(b) (3) or (4), check the following box: [ ].
Check the following box if a fee is being paid with this statement [ ]. (A fee
is not required only if the reporting person: (1) has a previous statement on
file reporting beneficial ownership of more than five percent of the class of
securities described in Item 1; and (2) has filed no amendment subsequent
thereto reporting beneficial ownership of less than five percent of such class.)
(See Rule 13d-7.)
NOTE: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
*The remainder of this cover page shall be filled out for a reporting person's
initial filing on this form with respect to the subject class of securities, and
for any subsequent amendment containing information which would alter
disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed
to be "filed" for the purpose of Section 18 of the Securities Exchange Act of
1934 ("Act") or otherwise subject to the liabilities of that section of the Act
but shall be subject to all other provisions of the Act (however, see the
Notes).
Exhibit Index is on Page 15
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- -------------------------------------------------------------------------------
(1) Names of Reporting Persons S.S. or I.R.S. Identification Nos. of Above
Persons
TELE-COMMUNICATIONS, INC.
84 - 1260157
- -------------------------------------------------------------------------------
(2) Check the Appropriate Box if a Member of a Group
(a) [ ]
(b) [ ]
- -------------------------------------------------------------------------------
(3) SEC Use Only
- -------------------------------------------------------------------------------
(4) Source of Funds
OO
- -------------------------------------------------------------------------------
(5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items
2(d) or 2(e) [ ]
- -------------------------------------------------------------------------------
(6) Citizenship or Place of Organization
Delaware
- -------------------------------------------------------------------------------
Number of (7) Sole Voting Power 7,181,341 Shares*
Shares Bene-
ficially --------------------------------------------------------
Owned by (8) Shared Voting Power 0 Shares
Each Report-
ing Person --------------------------------------------------------
With (9) Sole Dispositive Power 7,181,341 Shares*
--------------------------------------------------------
(10) Shared Dispositive Power 0 Shares
- -------------------------------------------------------------------------------
(11) Aggregate Amount Beneficially Owned by Each Reporting Person
7,181,341 Shares*
- -------------------------------------------------------------------------------
(12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares [ ]
- -------------------------------------------------------------------------------
(13) Percent of Class Represented by Amount in Row (11)
44.1%
- -------------------------------------------------------------------------------
(14) Type of Reporting Person
HC, CO
_____________________________
/*/Including the 6,327,000 shares currently beneficially owned by TCI together
with the additional 854,341 shares TCI would acquire upon the exercise of stock
options. (See Items 3, 4 and 7)
2
<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 13D
(Amendment No. 3)
Statement of
TELE-COMMUNICATIONS, INC.
Pursuant to Section 13(d) of the
Securities Exchange Act of 1934
in respect of
TSX CORPORATION
(Commission File No. 001-11814)
ITEM 1. Security and Issuer
-------------------
Tele-Communications, Inc., a Delaware corporation ("TCI"), hereby
amends and supplements its Statement on Schedule 13D (the "Statement"), with
respect to the Common Stock, $.01 par value (the "Common Stock"), of TSX
Corporation, a Nevada corporation ("TSX"). TCI has certain preemptive rights to
purchase newly issued shares of TSX and has recently received certain options
pursuant to such preemptive rights as a result of amendments to previously
granted options and recent grants of options to others by TSX (collectively, the
"TCI Options"). (See Items 3, 4 and 7). In addition, pursuant to Rule 13d-2(c)
of the Securities Exchange Act of 1934, as amended (the "Exchange Act"), this
Amendment No. 3 also restates the Statement and each previously filed amendment
to the Statement.
TSX's principal executive offices are located at 4849 N. Mesa, Suite
200, El Paso, Texas 79912. Unless otherwise indicated, capitalized terms used
but not defined herein shall have the meanings assigned to such terms in the
Statement.
ITEM 2. Identity and Background
-----------------------
This Amendment No. 3 is being filed by TCI whose principal business
address is 5619 DTC Parkway, Englewood, Colorado 80111.
TCI, through its subsidiaries and affiliates, is principally engaged
in the construction, acquisition, ownership, and operation of cable television
systems and the provision of satellite-delivered video entertainment,
information and home shopping programming services to various video distribution
media, principally cable television systems. TCI also has investments in cable
and telecommunications operations and television programming in certain
international markets as well as investments in companies and joint ventures
involved in developing and providing programming for new television and
telecommunications technologies. TCI is a Delaware corporation and was
incorporated in 1994. TCI Communications, Inc. ("TCIC"), a majority owned
subsidiary of TCI, and its predecessors have been engaged in the cable
television business since the early 1950's. Prior to August 1994, TCI was named
TCI/Liberty Holding Company and TCIC was named Tele-Communications, Inc.
Schedule 1 attached to this Amendment No. 3 to the Statement contains
the following information concerning each director, executive officer or
controlling person of TCI: (i) name and residence or business address, (ii)
principal occupation or employment; and (iii) the name, principal
3
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business and address of any corporation or other organization in which such
employment is conducted. Schedule 1 is incorporated herein by reference and
replaces the Schedule previously filed with the Statement.
To the knowledge of TCI, each of the persons named on Schedule 1 (the
"Schedule 1 Persons") is a United States citizen. During the last five years,
neither TCI nor any of the Schedule 1 Persons (to the knowledge of TCI) has been
convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors). During the last five years, neither TCI nor any of the Schedule
1 Persons (to the knowledge of TCI) has been a party to a civil proceeding of a
judicial or administrative body of competent jurisdiction and, as a result of
such proceeding, is or was subject to a judgment, decree or final order
enjoining future violations of, or prohibiting or mandating activities subject
to, federal or state securities laws or finding any violation with respect to
such laws.
August 1994 Business Combination
- --------------------------------
On August 4, 1994, at Special Meetings of Stockholders of TCIC and
Liberty Media Corporation ("LMC"), there was approved and adopted an Agreement
and Plan of Merger, dated as of January 27, 1994, as amended, which provided
for, among other things, the business combination of TCIC and LMC resulting in
the companies becoming wholly owned subsidiaries of TCI (the "Business
Combination"). The Business Combination became effective on August 4, 1994,
upon certain filings with state authorities. Upon the effectiveness of the
Business Combination, TCI became the indirect beneficial owner of all of the
Common Stock owned by TCIC.
The foregoing summary of the Business Combination is qualified in its
entirety by reference to the complete terms, provisions and conditions thereof
set forth in the Proxy Statement of LMC and TCIC and the Prospectus of TCI filed
on June 23, 1994 (the "Proxy Statement/Prospectus") by such parties as part of a
Registration Statement on Form S-4 (No. 33-54263). The Registration Statement
and Proxy Statement/Prospectus are incorporated herein by reference and were so
filed herewith as Exhibit A in the original Statement.
ITEM 3. Source and Amount of Funds or Other Consideration
-------------------------------------------------
TCI currently beneficially owns, directly and through a subsidiary a
total of 7,181,341 shares of Common Stock. Such beneficial ownership is
comprised of 6,327,000 shares of Common Stock and TCI Options to acquire up to
an additional 854,341 shares of Common Stock. TCI acquired the Common Stock and
TCI Options in previously reported transactions and in connection with a recent
transaction. The information set forth below describes the previously reported
and recent transactions and states the source and amount of the consideration
used in the transactions. TCI is also filing this Schedule 13D because it has
entered into a Voting Agreement, which is described in Items 4 and 6 below. TCI
did not pay any new consideration in connection with said Voting Agreement.
Unless otherwise indicated, the number of shares subject to options and the
respective exercise prices are reported below on a post-dividend, post-split
basis even though the grant dates thereof may have occurred prior to the
authorizations by TSX of such stock dividend and stock split, respectively.
Acquisition Pursuant to the Business Combination
- ------------------------------------------------
In connection with the Business Combination described in Item 2 above,
TCI acquired indirect beneficial ownership of 6,327,000 shares of the Common
Stock. The consideration for the acquisition of such Common Stock was the
consideration given in the Business Combination which is described in the Proxy
Statement/Prospectus under the heading "THE MERGER AGREEMENT-Consideration to be
Received in the Mergers". The Common Stock is subject to an Investment
Agreement dated as of March 14, 1994 (the "Investment Agreement") which grants
TCI, through a wholly owned
4
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subsidiary, (i) certain pre-emptive rights to acquire newly issued shares or
derivative securities of TSX, and (ii) the right to appoint up to two nominee's
to the board of directors of TSX. Upon issuance by TSX of shares or derivative
securities to certain other persons, the Investment Agreement requires TSX to
issue a sufficient number of shares or derivative securities, as the case may
be, to give TCI the same percentage ownership TCI had prior to such issuance.
The Investment Agreement is incorporated herein by reference and was so filed
herewith as Exhibit B in the original Statement.
November 1994 Stock Option Grant
- --------------------------------
Pursuant to the Investment Agreement, TCI acquired the TCI Options set
forth in the following table. The grants are evidenced by two Stock Option
Agreements, each dated as of October 12, 1994, as amended. On November 15,
1996, TSX and TCI amended the respective Stock Option Agreements to correct the
number of shares subject to such TCI Options. Such amendments are the result of
a recalculation of the pre-emptive rights granted TCI in the Investment
Agreement, and caused an increase of 17,931, 4,628 and 1,948, respectively in
the number of shares subject to the TCI Options previously reported, plus an
additional grant of TCI Options that should have occurred in October 1994, all
as described below. The TCI Options have terms similar to the options issued to
certain persons by TSX on or immediately prior to the respective dates of grant
for the TCI Options. TCI did not pay any new consideration to receive the TCI
Options.
The expiration dates, number of shares and exercise price per share of
the TCI Options as reflected in the Stock Option Agreements, as amended, are set
forth in the following table:
- --------------------------------------------------------------------------------
EXPIRATION DATE NUMBER OF SHARES EXERCISE PRICE PER SHARE
- --------------------------------------------------------------------------------
July 28, 2004 84,612 $4.54
July 28, 2004 21,836 $5.75
March 14, 2004 432,169 $2.00
October 3, 2004 13,648 $8.04
The Stock Option Agreements, as amended, permit TCI to tender cash to
purchase the shares pursuant to the TCI Options. In addition, the Stock Option
Agreements, as amended, allow TCI to purchase the shares underlying the TCI
Options pursuant to a cashless exercise. To effect the cashless exercise, TCI
would deliver to TSX the number of shares of TSX Common Stock equal to the
exercise price payable divided by the fair market value of one share of TSX
Common Stock. The respective Stock Option Agreements are incorporated herein by
reference and were so filed herewith as Exhibit C and Exhibit D in the Amendment
1 to the Statement. The respective Amendments to Stock Option Agreements are
attached to this Amendment No. 3 to the Statement as Exhibit F and Exhibit G and
are incorporated herein by this reference. The description of the Stock Option
Agreements and the Amendments thereto contained herein is qualified in its
entirety by reference to the text of the respective Stock Option Agreements and
the respective Amendments to Stock Option Agreements.
November 1994 Stock Dividend
- ----------------------------
On October 18, 1994, the board of directors of TSX authorized a 100%
Common Stock dividend to stockholders of record on October 28, 1994. Each
stockholder of Common Stock received one additional share of Common Stock for
each share of Common Stock held of record. As a result of the stock dividend,
TCI's record ownership increased from 2,109,000 shares to 4,218,000 shares. In
addition, the terms of the Investment Agreement and the Stock Option Agreements,
as amended, provide for an adjustment in the number of shares of Common Stock
underlying the TCI Options in the case of a stock
5
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dividend. Accordingly, on October 28, 1994, the TCI Options granted to date, as
amended, became convertible into a total of 368,177 shares of Common Stock.
October 1995 Stock Option Grant
- -------------------------------
Pursuant to the Investment Agreement, TCI acquired the TCI Options set
forth in the following table and evidenced by a Stock Option Agreement, dated as
of October 6, 1995. On November 15, 1996, TSX and TCI amended the Stock Option
Agreement to correct the number of shares subject to such TCI Options. Such
amendment is the result of a recalculation of the pre-emptive rights granted TCI
in the Investment Agreement, and caused an increase of 5,954, 4,043 and 13,906,
respectively in the number of shares subject to the TCI Options previously
reported, plus an additional four grants of TCI Options that should have
occurred in 1995, all as described below. The TCI Options have terms similar to
the options issued to certain persons by TSX on or immediately prior to the
respective dates of grant for the TCI Options. TCI did not pay any new
consideration to receive the TCI Options.
The expiration dates, number of shares and exercise price per share of
the TCI Options as reflected in the Stock Option Agreement, as amended, are set
forth in the following table:
- --------------------------------------------------------------------------------
EXPIRATION DATE NUMBER OF SHARES EXERCISE PRICE PER SHARE
- --------------------------------------------------------------------------------
March 12, 2005 27,284 $11.50
January 23, 2005 13,642 $10.75
January 28, 2005 3,275 $5.00
May 21, 2005 64,116 $11.72
June 30, 2005 27,284 $15.83
September 28, 2005 76,122 $15.83
October 17, 2005 5,426 $13.00
The Stock Option Agreement, as amended, permits TCI to tender cash to
purchase the shares pursuant to the TCI Options. In addition, the Stock Option
Agreement, as amended, allows TCI to purchase the shares underlying the TCI
Options pursuant to a cashless exercise. To effect the cashless exercise, TCI
would deliver to TSX the number of shares of TSX Common Stock equal to the
exercise price payable divided by the fair market value of one share of TSX
Common Stock. The Stock Option Agreement is incorporated herein by reference and
was so filed herewith as Exhibit E in the Amendment 2 to the Statement. The
Amendment to Stock Option Agreement is attached to this Amendment No. 3 to the
Statement as Exhibit H and is incorporated herein by this reference. The
description of the Stock Option Agreement and the Amendment thereto contained
herein is qualified in its entirety by reference to the text of the Stock Option
Agreement and the Amendment to Stock Option Agreement.
June 1996 Stock Split
- ---------------------
On June 5, 1996, the TSX announced a 3 for 2 stock split for
stockholders of record on June 28, 1996. Each stockholder of Common Stock
received a 50% stock dividend. As a result of the stock dividend, TCI's record
ownership increased from 4,218,000 shares to 6,327,000 shares. In addition, the
terms of the Investment Agreement and the Stock Option Agreements provide for an
adjustment in the number of shares of Common Stock underlying the TCI Options in
the case of a stock dividend. Accordingly, on June 28, 1996, the TCI Options
granted to date became convertible into a total of 660,582 shares of Common
Stock.
6
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November 1996 Stock Option Grants
- ---------------------------------
At various times from September 1994 to date, TSX granted options to
certain persons, which triggered TCI's pre-emptive rights under the Investment
Agreement. TCI did not receive the TCI Options at the respective dates of
grant, however, because either TSX failed to notify TCI of such rights or, when
notified, TCI and TSX did not agree on the number of shares subject to each
respective TCI Option grant. In November 1996, TSX and TCI reached agreement on
the TCI Options not yet issued.
As a result of such agreement, TCI acquired additional TCI Options as
reflected in the amendments to the "November 1994 Stock Option Grant" and the
"October 1995 Stock Option Grant" described above, plus the TCI Options set
forth in the following table and evidenced by a Stock Option Agreement dated as
of November 15, 1996. The Stock Option Agreement reflects the dates of grant
and exercise prices for the respective TCI Options evidenced thereby. The terms
of each issuance of TCI Options are similar to the terms of the options issued
to certain persons by TSX on or immediately prior to the respective dates of
grant for the TCI Options. TCI did not pay any new consideration to receive the
TCI Options issued under the Stock Option Agreement.
The expiration dates, number of shares and exercise price per share of
the TCI Options as reflected in the Stock Option Agreement are set forth in the
following table:
- --------------------------------------------------------------------------------
EXPIRATION DATE NUMBER OF SHARES EXERCISE PRICE PER SHARE
- --------------------------------------------------------------------------------
January 4, 2006 5,460 $12.83
April 15, 2006 6,824 $20.00
June 5, 2006 4,913 $20.00
June 25, 2006 20,472 $19.33
June 25, 2006 6,824 $15.83
July 25, 2006 40,435 $15.75
The Stock Option Agreement permits TCI to tender cash to purchase the
shares pursuant to the TCI Options. In addition, each Stock Option Agreement
allows TCI to purchase the shares underlying the TCI Options pursuant to a
cashless exercise. To effect the cashless exercise, TCI would deliver to TSX
the number of shares of TSX Common Stock equal to the exercise price payable
divided by the fair market value of one share of TSX Common Stock. The Stock
Option Agreement is attached to this Amendment No. 3 to the Statement as Exhibit
I and is incorporated herein by this reference. The description of the Stock
Option Agreement contained herein is qualified in its entirety by reference to
the text of the Stock Option Agreement.
ITEM 4. Purpose of Transaction
----------------------
Due to the pending merger of a wholly-owned subsidiary of ANTEC
Corporation ("ANTEC") with and into TSX as announced in a joint press release on
October 28, 1996 (the "Merger"), management of TCI has determined to cause a
portion of the TCI Options to be exercised in accordance with their terms prior
to the Merger. The number of options exercised, timing and method (whether with
cash or through a cashless exercise) of exercise will depend upon various
factors, such as the effective date of the Merger, other developments concerning
TSX, and general economic and stock market conditions. The remaining TCI
Options not exercised will be assumed by ANTEC pursuant to the terms of the
Merger. In addition, as a condition to the Merger, ANTEC requested TCI to enter
into a Voting Agreement dated as of October 28, 1996 (the "Voting Agreement").
Pursuant to the terms of the Merger every share of TSX Common Stock will be
exchanged for a share of common stock in ANTEC Corporation, each outstanding
option granted by TSX to purchase shares of Common Stock will be converted
automatically into an option
7
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to purchase the same number of shares of common stock of ANTEC at the same
exercise price, and TSX will become a wholly-owned subsidiary of ANTEC.
Except as otherwise described herein, neither TCI nor, to the best of
its knowledge, any of its executive officers, directors or controlling persons,
have any present plans or proposals which relate to or would result in: (i) any
acquisition by any person of additional securities of TSX, or any disposition of
securities of TSX; (ii) any extraordinary corporate transaction, such as a
merger, reorganization or liquidation, involving TSX or any of its subsidiaries;
(iii) any sale or transfer of a material amount of assets of TSX or any of its
subsidiaries; (iv) any change in the present board of directors or management of
TSX, including any plans or proposals to change the number or term of directors
or to fill any existing vacancies on the board; (v) any material change in the
present capitalization or dividend policy of TSX; (vi) any other material change
in TSX's business or corporate structure; (vii) any changes in TSX's charter,
by-laws, or other instruments corresponding thereto or other actions which may
impede the acquisition of control of TSX by any person; (viii) any delisting
from a national securities exchange or any loss of authorization for quotation
in an inter-dealer quotation system of a registered national securities
association of a class of securities of TSX; (ix) any termination of
registration pursuant to section 12(g)(4) of the Exchange Act of a class of
equity securities of TSX; or (x) any action similar to any of those enumerated
above.
Notwithstanding the foregoing, TCI may determine to change its
investment intent with respect to TSX at any time in the future. In reaching
any conclusion as to its future course of action, TCI will take into
consideration various factors, such as TSX's business and prospects, other
developments concerning TSX, other business opportunities available to TCI,
developments with respect to the business of TCI, and general economic and stock
market conditions, including, but not limited to, the market price of the Common
Stock of TSX. TCI reserves the right, depending on other relevant factors, to
acquire additional shares of the Common Stock of TSX in open market or privately
negotiated transactions, to dispose of all or a portion of its holdings of
shares of the Common Stock of TSX or to change its intention with respect to any
or all of the matters referred to in this Item.
ITEM 5. Interest in Securities of the Issuer
------------------------------------
(a) TCI presently beneficially owns 7,181,341 shares of the Common
Stock. Of the 7,181,341 shares beneficially owned, 6,327,000 shares are
currently owned of record by a subsidiary of TCI and an additional 854,341
shares may be acquired upon the exercise of the TCI Options. The 7,181,341
shares of Common Stock beneficially owned by TCI represent 44.1% of the
15,421,544 shares of TSX Common Stock outstanding as of August 30, 1996, as
reported by TSX in its Quarterly Report on Form 10-Q for the period ended July
27, 1996.
Bernard W. Schotters, Senior Vice President and Treasurer of TCI
Communications, Inc., presently jointly beneficially owns with his spouse, Mrs.
Nancy F. Schotters, 24,000 shares of the Common Stock on a post stock dividend,
post-split basis. Mr. and Mrs. Schotters' beneficial ownership of 24,000 shares
of the Common Stock represents less than 1% of the 15,421,544 shares of TSX
Common Stock outstanding as of August 30, 1996.
Fred A. Vierra, Executive Vice President of TCI, presently jointly
beneficially owns with his spouse 7,500 shares of the Common Stock on a post
stock dividend, post-split basis. Mr. and Mrs. Vierra's beneficial ownership of
7,500 shares of the Common Stock represents less than 1% of the 15,421,544
shares of TSX Common Stock outstanding as of August 30, 1996.
Other than Mr. Schotters and Mr. Vierra, none of the Schedule 1
Persons has any interest in any securities of TSX.
8
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(b) TCI has the sole power to vote or to direct the voting of the
shares of the Common Stock that TCI beneficially owns. TCI has the sole power to
dispose of, or to direct the disposition of the shares of Common Stock that TCI
beneficially owns.
To the knowledge of TCI, Mr. and Mrs. Schotters, and Mr. and Mrs.
Vierra each have sole power to vote or to direct the voting of the shares of
Common Stock that they beneficially own, respectively. To the knowledge of TCI,
Mr. and Mrs. Schotters, and Mr. and Mrs. Vierra each have sole power to dispose
of, or to direct the disposition of the shares of Common Stock that they
beneficially own, respectively. To the knowledge of TCI, the representations
contained in the fourth paragraph of Item 2 hereof are also applicable to Mrs.
Schotters and Mrs. Vierra, respectively. Mrs. Schotters' mailing address is
19029 E. Davis Place, Aurora, Colorado 80016, and Mrs. Schotters is not
presently employed. Mrs. Vierra's mailing address is 77 Glenmoor Drive,
Englewood, Colorado 80111, and Mrs. Vierra is not presently employed.
(c) Except for the acquisition of the TCI Options, neither TCI nor, to
the knowledge of TCI, any of the persons described on Schedule 1, has executed
transactions in the Common Stock of TSX during the past sixty (60) days.
(d) There is no person that has the right to receive or the power to
direct the receipt of dividends from, or the proceeds from the sale of, the
Common Stock owned by TCI.
To the knowledge of TCI, there is no person that has the right to
receive or the power to direct the receipt of dividends from, or the proceeds
from the sale of, the Common Stock owned by either Mr. and Mrs. Schotters or Mr.
and Mrs. Vierra, respectively.
(e) Not applicable.
ITEM 6. Contracts, Arrangements, Understandings or Relationships with Respect
---------------------------------------------------------------------
to Securities of the Issuer
---------------------------
Pursuant to the terms of a Voting Agreement, TCI has agreed, subject
to the terms and conditions of the Voting Agreement, to vote its TSX shares of
Common Stock in favor of the Merger and all other transactions contemplated in
that certain Plan of Merger dated October 28, 1996, whether in a meeting or by
written consent of TSX stockholders. In the Voting Agreement, TCI has appointed
ANTEC its attorney and proxy with full power of substitution to vote the Common
Stock held by TCI. Therefore, to the extent TCI fails to meet its obligations
under the Voting Agreement, unless otherwise excused, ANTEC may vote TCI's
Common Stock in accordance with the terms of said Voting Agreement. The Voting
Agreement remains in effect until the Plan of Merger is terminated or the
transactions contemplated therein are consummated. The description of the
Voting Agreement contained herein is qualified in its entirety by reference to
the text of the Voting Agreement. The Voting Agreement is incorporated herein
by reference and is attached to this Amendment No. 3 to the Statement as Exhibit
J.
Except as described above and in Items 3, 4 and 7, hereof, there are
presently no contracts, arrangements, understandings or relationships among TCI
and other persons with respect to the Common Stock of TSX.
9
<PAGE>
ITEM 7. Material to be Filed as Exhibits
--------------------------------
(A) Registration Statement on Form S-4, filed by TCI/Liberty Holding
Company on June 23, 1994, and thereafter amended and ordered effective June 23,
1994, under Commission File No. 33-54263, which is hereby incorporated by this
reference. (Previously submitted with Original Statement filed on August 11,
1994, via incorporation by reference.)
(B) Investment Agreement, dated March 14, 1994, between TSX and TCIC,
filed March 22, 1994, as part of TCIC's Schedule 13D, under Commission File No.
001-11814, which is hereby incorporated by this reference. (Previously
submitted with Original Statement filed on August 11, 1994, via incorporation by
reference.)
(C) Stock Option Agreement, dated as of October 12, 1994 (executed on
November 30, 1994), between TSX and TCIC (Granting Preemptive Rights Stock
Options on Account of Employee Stock Options Granted Pursuant to Long-Term
Incentive Compensation Program). (Previously submitted with Amendment No. 1 to
Original Statement filed on December 2, 1994.)
(D) Stock Option Agreement, dated as of October 12, 1994 (executed on
November 30, 1994), between TSX and TCIC (Granting Preemptive Rights Stock
Options on Account of Stock Options Granted to William H. Lambert). (Previously
submitted with Amendment No. 1 to Original Statement filed on December 2, 1994.)
(E) Stock Option Agreement, dated as of October 6, 1995 (executed on
October 6, 1995), between TSX and TCI TSX, Inc. (Granting Preemptive Rights
Stock Options on Account of Employee Stock Options Granted Pursuant to Long-Term
Incentive Compensation Program). (Previously submitted with Amendment No. 2 to
Original Statement filed on October 17, 1995.)
(F) Amendment to Stock Option Agreement (dated as of October 12,
1994), dated as of November 15, 1996, between TSX and TCI TSX, Inc. (amending
Preemptive Rights Stock Options on Account of Employee Stock Options Granted
Pursuant to Long-Term Incentive Compensation Program).
(G) Amendment to Stock Option Agreement (dated as of October 12,
1994), dated as of November 15, 1996, between TSX and TCI TSX, Inc. (amending
Preemptive Rights Stock Options on Account of Stock Options Granted to William
H. Lambert).
(H) Amendment to Stock Option Agreement dated as of October 6, 1995,
dated as of November 15, 1996, between TSX and TCI TSX, Inc. (amending
Preemptive Rights Stock Options on Account of Employee Stock Options Granted
Pursuant to Long-Term Incentive Compensation Program).
(I) Stock Option Agreement, dated as of November 15, 1996, between
TSX and TCI TSX, Inc. (Granting Preemptive Rights Stock Options on Account of
Employee Stock Options Granted Pursuant to Long-Term Incentive Compensation
Program).
(J) Voting Agreement, dated as of October 28, 1996, between Tele-
Communications, Inc. and ANTEC, filed as Exhibit 99.1 to the Current Report on
Form 8-K for ANTEC Corporation filed on November 1, 1996, under Commission File
No. 0-22336, which is hereby incorporated by reference.
10
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SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this Statement is true, complete and
correct.
November 26, 1996 TELE-COMMUNICATIONS, INC.
/s/ Stephen M. Brett
------------------------------------
Stephen M. Brett
Executive Vice President and
General Counsel
11
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SCHEDULE 1
----------
Directors, Executive Officers and Controlling Persons
of
Tele-Communications, Inc. ("TCI")
<TABLE>
<CAPTION>
Principal Business
or Organization in
Employment Principal Occupation and Which Such
Name Business Address Is Conducted
- ------------------ ----------------------------- ----------------------
<S> <C> <C>
John C. Malone Chairman of the Board, Cable television &
President and Chief Executive telecommunications;
Officer & Director of TCI & programming services
5619 DTC Parkway
Englewood, CO 80111
Donne F. Fisher Consultant & Director Cable television &
of TCI telecommunications;
5619 DTC Parkway & programming services
Englewood, CO 80111
John W. Gallivan Director of TCI; Newspaper publishing
Chairman of the Board
of Kearns-Tribune Corporation
400 Tribune Building
Salt Lake City, UT 84111
Tony Lee Coelho Director of TCI; Chairman of the Board & Investment Services
Chief Executive Officer of ETC w/ TCI, Inc.;
Chairman & Chief Executive Officer of
Coelho Associates, LLP
1325 Avenue of the Americas,
26th Floor
New York, NY 10019
Kim Magness Director of TCI & TCI Communications, Inc. Management of personal
Manages various personal investments investments
4000 E. Belleview
Englewood, CO 80111
</TABLE>
12
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Robert A. Naify Director of TCI; President and C.E.O. of Motion Picture
Todd-AO Corporation Industry
172 Golden Gate Avenue
San Francisco, CA 94102
Jerome H. Kern Director of TCI; Business Consultant; Business Consulting; Law
Senior Counsel to Baker & Botts, L.L.P.
5619 DTC Parkway
Englewood, CO 80111
Gary K. Bracken Senior Vice President & Controller Cable television &
of TCI Communications, Inc. telecommunications;
5619 DTC Parkway & programming services
Englewood, CO 80111
Stephen M. Brett Executive Vice President, Secretary Cable television &
& General Counsel of TCI telecommunications;
5619 DTC Parkway & programming services
Englewood, CO 80111
Brendan R. Clouston Executive Vice President & Chief Operating Cable television &
Officer of TCI telecommunications;
5619 DTC Parkway & programming services
Englewood, CO 80111
Barry Marshall Executive Vice President of Cable television &
TCI Communications, Inc. telecommunications;
5619 DTC Parkway & programming services
Englewood, CO 80111
Larry E. Romrell Executive Vice President of TCI Cable television &
5619 DTC Parkway telecommunications;
Englewood, CO 80111 & programming services
Bernard W. Senior Vice President - Finance & Treasurer Cable television &
Schotters, II of TCI Communications, Inc. telecommunications;
5619 DTC Parkway & programming services
Englewood, CO 80111
</TABLE>
13
<PAGE>
<TABLE>
<CAPTION>
<S> <C> <C>
Robert N. Thomson Senior Vice President - Government Affairs Cable television &
of TCI Communications, Inc. telecommunications;
5619 DTC Parkway & programming services
Englewood, CO 80111
Fred A. Vierra Executive Vice President of TCI; Chief Cable television &
Executive Officer of Tele-Communications telecommunications;
International, Inc. & programming services
5619 DTC Parkway
Englewood, CO 80111
Peter R. Barton Executive Vice President of TCI Cable television &
5619 DTC Parkway telecommunications;
Englewood, CO 80111 & programming services
</TABLE>
14
<PAGE>
EXHIBIT INDEX
-------------
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
EXHIBIT EXHIBIT PAGE
NUMBER
- ---------------------------------------------------------------------------------------------------------
7(A) Registration Statement on Form S-4, filed by TCI/Liberty Holding Company on June Previously
23, 1994, and thereafter amended and ordered effective June 23, 1994, under filed
Commission File No. 33-54263, which is hereby incorporated by this reference.
(Previously submitted with Original Statement filed on August 11, 1994, via
incorporation by reference.)
7(B) Investment Agreement, dated March 14, 1994, between TSX and TCIC, filed March Previously
22, 1994, as part of TCIC's Schedule 13D, under Commission File No. 001-11814, filed
which is hereby incorporated by this reference. (Previously submitted with
Original Statement filed on August 11, 1994, via incorporation by reference.)
7(C) Stock Option Agreement, dated as of October 12, 1994 (executed on November 30, Previously
1994), between TSX and TCIC (Granting Preemptive Rights Stock Options on Account filed
of Employee Stock Options Granted Pursuant to Long-Term Incentive Compensation
Program). (Previously submitted with Amendment No. 1 to Original Statement filed
on December 2, 1994.)
7(D) Stock Option Agreement, dated as of October 12, 1994 (executed on November 30, Previously
1994), between TSX and TCIC (Granting Preemptive Rights Stock Options on Account filed
of Stock Options Granted to William H. Lambert). (Previously submitted with
Amendment No. 1 to Original Statement filed on December 2, 1994.)
7(E) Stock Option Agreement, dated as of October 6, 1995 (executed on October 6, Previously
1995), between TSX and TCI TSX, Inc. (Granting Preemptive Rights Stock Options filed
on Account of Employee Stock Options Granted Pursuant to Long-Term Incentive
Compensation Program). (Previously submitted with Amendment No.2 to Original
Statement filed on October 17, 1995.)
7(F) Amendment to Stock Option Agreement (dated as of October 12, 1994), dated as of 17
November 15, 1996, between TSX and TCI TSX, Inc. (amending Preemptive Rights
Stock Options on Account of Employee Stock Options Granted Pursuant to Long-Term
Incentive Compensation Program)
7(G) Amendment to Stock Option Agreement (dated as of October 12, 1994), dated as of 19
November 15, 1996, between TSX and TCI TSX, Inc. (amending Preemptive Rights
Stock Options on Account of Stock Options Granted to William H. Lambert)
7(H) Amendment to Stock Option Agreement (dated as of October 6, 1995), dated as of 21
November 15, 1996, between TSX and TCI TSX, Inc. (amending Preemptive Rights
Stock Options on Account of Employee Stock Options Granted Pursuant to Long-Term
Incentive Compensation Program)
</TABLE>
15
<PAGE>
<TABLE>
<CAPTION>
- ---------------------------------------------------------------------------------------
<S> <C> <C>
EXHIBIT EXHIBIT PAGE
NUMBER
- ---------------------------------------------------------------------------------------
7(I) Stock Option Agreement, dated as of November 15, 1996, between TSX and 24
TCI TSX, Inc. (Granting Preemptive Rights Stock Options on Account of
Employee Stock Options Granted Pursuant to Long-Term Incentive
Compensation Program)
7(J) Voting Agreement, dated as of October 28, 1996, between Tele- --
Communications, Inc. and ANTEC, filed as Exhibit 99.1 to the Current
Report on Form 8-K for ANTEC Corporation filed on November 1, 1996,
under Commission File No. 0-22336, which is hereby incorporated by
reference
- ---------------------------------------------------------------------------------------
</TABLE>
16
<PAGE>
EXHIBIT 7(F)
AMENDMENT TO
STOCK OPTION AGREEMENT
AMENDMENT dated as of November 15, 1996 (this "Amendment") to Stock Option
Agreement dated as of October 12, 1994 (the "Stock Option Agreement") by and
between TSX Corporation, a Nevada corporation, and TCI TSX, Inc., a Colorado
corporation (the "Optionee"). Capitalized terms not otherwise defined herein are
used herein as defined in the Stock Option Agreement.
Preliminary Statement
A. Pursuant to the Stock Option Agreement, the Company in 1994 granted an
Option to the Optionee to purchase 22,227 shares of Common Stock by virtue of
the Optionee's exercise of preemptive rights with respect to grants by the
Company on July 28, 1994 to certain of its employees under the Company's Amended
and Restated Long-Term Incentive Compensation Program ("LTIP") of options to
purchase 39,000 shares of Common Stock.
B. The Company in 1994 made additional grants under the LTIP to certain
employees of options to purchase shares of Common Stock, thereby entitling the
Optionee, pursuant to its preemptive rights, to additional Options to purchase
shares of Common Stock. Accordingly, the parties desire to amend the Stock
Option Agreement to include the additional Options.
Amendment
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the Stock Option Agreement is hereby amended as follows:
1. In addition to the Options granted to the Optionee pursuant to the
Stock Option Agreement, the Company has granted and does hereby ratify and
confirm the grants as of the respective dates hereinafter set forth of the
following Options (the "Options") to purchase shares of Common Stock of the
Company on the terms herein provided and otherwise as set forth in the Stock
Option Agreement:
(a) An Option to purchase 17,931 shares of Common Stock was granted and
is hereby ratified and confirmed as of July 28, 1994 at an Exercise Price
of $4.54 per share, which Option shall be exercisable by the Optionee in
whole or in part at any time or times for a period commencing as of July
28, 1994 and expiring at the close of business on July 28, 2004.
(b) An Option to purchase 4,628 shares of Common Stock was granted and
is hereby ratified and confirmed as of July 28, 1994 at an Exercise Price
of $5.75 per share, which Option shall be exercisable by the Optionee in
whole or in part at any time or times for a period commencing as of July
28, 1994 and expiring at the close of business on July 28, 2004.
<PAGE>
(c) An Option to purchase 13,648 shares of Common Stock was granted and
is hereby ratified and confirmed as of October 3, 1994 at an Exercise
Price of $8.04 per share, which Option shall be exercisable by the
Optionee in whole or in part at any time or times for a period commencing
as of October 3, 1994 and expiring at the close of business on October 3,
2004.
The shares of Common Stock issuable upon exercise of the Options are
referred to herein and in the Stock Option Agreement as "Option Stock." Except
as otherwise herein provided, the provisions of the Stock Option Agreement shall
apply to the Options which are the subject of this Amendment.
Share and per share amounts set forth above have been adjusted for the
two-for-one stock split in 1994 and the three-for-two stock split in 1996.
2. Except as amended hereby, the provisions of the Stock Option Agreement
shall remain in full force and effect.
EXECUTED as of the day and year first above written.
TSX CORPORATION
By:/s/ William H. Lambert
-------------------------------------
William H. Lambert, Chairman,
President and Chief Executive Officer
TCI TSX, INC.
By:/s/ David Boileau
-------------------------------------
Name: David Boileau
Title: Vice President
<PAGE>
EXHIBIT 7(G)
AMENDMENT TO
STOCK OPTION AGREEMENT
AMENDMENT dated as of November 15, 1996 (this "Amendment") to Stock Option
Agreement dated as of October 12, 1994 (the "Stock Option Agreement") by and
between TSX Corporation, a Nevada corporation, and TCI TSX, Inc., a Colorado
corporation (the "Optionee"). Capitalized terms not otherwise defined herein are
used herein as defined in the Stock Option Agreement.
Preliminary Statement
A. Pursuant to the Stock Option Agreement, the Company in 1994 granted an
Option to the Optionee to purchase 430,221 shares of Common Stock by virtue of
the Optionee's exercise of preemptive rights with respect to stock options
granted by the Company to William H. Lambert ("Lambert") pursuant to a stock
option agreement between the Company and Lambert dated March 14, 1994 (and
approved by stockholders September 12, 1994).
B. The parties have recalculated and determined that the Optionee was
entitled to an additional 1,948 shares of Option Stock under the Option.
Accordingly, the parties desire to amend the Stock Option Agreement to include
the additional Options.
Amendment
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the Stock Option Agreement is hereby amended as follows:
1. In addition to the Options granted to the Optionee pursuant to the
Stock Option Agreement, the Company has granted and does hereby ratify and
confirm the grant to Optionee as of March 14, 1994, on the terms herein provided
and otherwise as set forth in the Stock Option Agreement, of an Option to
purchase 1,948 shares of Common Stock at an Exercise Price of $2.00 per share,
which Option shall be exercisable by the Optionee in whole or in part at any
time or times for a period commencing as of March 14, 1994 and expiring at the
close of business on March 14, 2004.
The shares of Common Stock issuable upon exercise of the Options are
referred to herein and in the Stock Option Agreement as "Option Stock." Except
as otherwise herein provided, the provisions of the Stock Option Agreement shall
apply to the Option which is the subject of this Amendment.
Share and per share amounts set forth in this Amendment have been adjusted
for the two-for-one stock split in 1994 and the three-for-two stock split in
1996.
2. Except as amended hereby, the provisions of the Stock Option Agreement
shall remain in full force and effect.
<PAGE>
EXECUTED as of the day and year first above written.
TSX CORPORATION
By:/s/ William H. Lambert
----------------------------------------
William H. Lambert, Chairman,
President and Chief Executive Officer
TCI TSX, INC.
By:/s/ David Boileau
----------------------------------------
Name: David Boileau
Title: Vice President
<PAGE>
EXHIBIT 7(H)
AMENDMENT TO
STOCK OPTION AGREEMENT
AMENDMENT dated as of November 15, 1996 (this "Amendment") to Stock Option
Agreement dated as of October 6, 1995 (the "Stock Option Agreement") by and
between TSX Corporation, a Nevada corporation, and TCI TSX, Inc., a Colorado
corporation (the "Optionee"). Capitalized terms not otherwise defined herein are
used herein as defined in the Stock Option Agreement.
Preliminary Statement
A. Pursuant to the Stock Option Agreement, the Company in 1995 granted
Options to the Optionee to purchase 54,292 shares of Common Stock by virtue of
the Optionee's exercise of preemptive rights with respect to grants by the
Company to certain of its employees under the Company's Amended and Restated
Long-Term Incentive Compensation Program ("LTIP") of options to purchase 14,220
shares of Common Stock granted March 12, 1995, 6,399 shares granted January 23,
1995 and options to purchase 33,473 shares granted May 21, 2005.
B. The Company in 1995 made additional grants to certain employees under
the LTIP of options to purchase shares of Common Stock, thereby entitling the
Optionee, pursuant to its preemptive rights, to additional Options to purchase
shares of Common Stock. Accordingly, the parties desire to amend the Stock
Option Agreement to include the additional Options.
Amendment
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the Stock Option Agreement is hereby amended as follows:
1. In addition to the Options granted to the Optionee pursuant to the
Stock Option Agreement, the Company has granted and does hereby ratify and
confirm the grants as of the respective dates hereinafter set forth of the
following Options (the "Options") to purchase shares of Common Stock of the
Company on the terms herein provided and otherwise as set forth in the Stock
Option Agreement:
(a) An Option to purchase 5,954 shares of Common Stock was granted and
is hereby ratified and confirmed as of March 12, 1995 at an Exercise Price
of $11.50 per share, which Option shall be exercisable by the Optionee in
whole or in part at any time or times for a period commencing as of March
12, 1995 and expiring at the close of business on March 12, 2005.
(b) An Option to purchase 4,043 shares of Common Stock was granted and
is hereby ratified and confirmed as of January 23, 1995 at an Exercise
Price of $10.75 per share, which Option shall be exercisable by the
Optionee in whole or in part at any time or times for a period commencing
as of January 23, 1995 and expiring at the close of business on January
23, 2005.
<PAGE>
(c) An Option to purchase 3,275 shares of Common Stock was granted and
is hereby ratified and confirmed as of January 28, 1995 at an Exercise
Price of $5.00 per share, which Option shall be exercisable by the
Optionee in whole or in part at any time or times for a period commencing
as of January 28, 1995 and expiring at the close of business on January
28, 2005.
(d) An Option to purchase 13,906 shares of Common Stock was granted and
is hereby ratified and confirmed as of May 21, 1995 at an Exercise Price
of $11.72 per share, which Option shall be exercisable by the Optionee in
whole or in part at any time or times for a period commencing as of May
21, 1995 and expiring at the close of business on May 21, 2005.
(e) An Option to purchase 27,284 shares of Common Stock was granted and
is hereby ratified and confirmed as of June 30, 1995 at an Exercise Price
of $15.83 per share, which Option shall be exercisable by the Optionee in
whole or in part at any time or times for a period commencing as of June
30, 1995 and expiring at the close of business on June 30, 2005.
(f) An Option to purchase 76,122 shares of Common Stock was granted and
is hereby ratified and confirmed as of September 28, 1995 at an Exercise
Price of $15.83 per share, which Option shall be exercisable by the
Optionee in whole or in part at any time or times for a period commencing
as of September 28, 1995 and expiring at the close of business on
September 28, 2005.
(g) An Option to purchase 5,426 shares of Common Stock was granted and
is hereby ratified and confirmed as of October 17, 1995 at an Exercise
Price of $13.00 per share, which Option shall be exercisable by the
Optionee in whole or in part at any time or times for a period commencing
as of October 17, 1995 and expiring at the close of business on October
17, 2005.
The shares of Common Stock issuable upon exercise of the Options are
referred to herein and in the Stock Option Agreement as "Option Stock." Except
as otherwise herein provided, the provisions of the Stock Option Agreement shall
apply to the Options which are the subject of this Amendment.
Shares and per share amounts set forth above have been adjusted to reflect
the three-for-two stock split in 1996.
2. Except as amended hereby, the provisions of the Stock Option Agreement
shall remain in full force and effect.
<PAGE>
EXECUTED as of the day and year first above written.
TSX CORPORATION
By:/s/ William H. Lambert
----------------------------------------
William H. Lambert, Chairman,
President and Chief Executive Officer
TCI TSX, INC.
By:/s/ David Boileau
----------------------------------------
Name: David Boileau
Title: Vice President
<PAGE>
EXHIBIT 7(I)
STOCK OPTION AGREEMENT
by and between
TSX CORPORATION
and
TCI TSX, INC.
Granting Preemptive Rights Stock Options to TCI TSX, Inc.
on Account of Employee Stock Options Granted Pursuant to
Long-Term Incentive Compensation Program
Dated as of November 15, 1996
<PAGE>
Table of Contents
<TABLE>
<CAPTION>
<C> <S> <C>
1. Grant of Options .......................................................................................... 1
2. Exercise of Options........................................................................................ 2
2.1 Method of Exercise.................................................................................... 2
2.2 Payment of Exercise Price............................................................................. 3
2.3 Fair Market Value..................................................................................... 3
3. Non-Transferability........................................................................................ 3
4. Representations, Warranties and Covenants of the Company................................................... 3
4.1 Organization, Good Standing, Authority and Approval................................................... 3
4.2 Authorization of Shares of Option Stock............................................................... 4
4.3 Company's Obligations................................................................................. 4
5. Representations, Warranties and Covenants of Optionee...................................................... 4
5.1 Organization, Good Standing, Authority and Approval................................................... 4
5.2 Acquisition for Own Account........................................................................... 4
6. Conditions To Issuance of Shares........................................................................... 4
7. Transfer Restrictions; Legend on Certificate............................................................... 5
8. Registration Rights........................................................................................ 5
9. Adjustments Upon Changes in Capitalization................................................................. 5
10. The Optionee's Rights as Shareholder....................................................................... 6
11. Applicability of Section 16(b) of the 1934 Act............................................................. 6
12. General.................................................................................................... 6
12.1 Entire Agreement..................................................................................... 6
12.2 Waiver............................................................................................... 7
12.3 Notices.............................................................................................. 7
12.4 Specific Performance................................................................................. 8
12.5 Survival of Representations and Warranties........................................................... 8
12.6 Amendments........................................................................................... 8
12.7 Certain Rules of Construction........................................................................ 8
12.8 Benefits of Agreement................................................................................ 8
12.9 Attorneys' Fees...................................................................................... 8
12.10 Counterparts......................................................................................... 8
</TABLE>
<PAGE>
STOCK OPTION AGREEMENT
Granting Preemptive Rights Stock Options to TCI TSX, Inc.
on Account of Employee Stock Options Granted Pursuant to
Long-Term Incentive Compensation Program
STOCK OPTION AGREEMENT (this "Agreement") dated as of November 15, 1996,
by and between TSX Corporation, a Nevada corporation with its principal office
at 4849 North Mesa, Suite 200, El Paso, Texas 79912 (the "Company") and TCI TSX,
Inc., a Colorado corporation with its principal office at Terrace Tower II, 5619
DTC Parkway, Englewood, Colorado 80111-3000 (the "Optionee").
Preliminary Statement
(A) The Optionee is an indirect wholly owned subsidiary of TCI
Communications, Inc. (formerly known as Tele-Communications, Inc.), a Delaware
corporation ("TCIC").
(B) The Company and TCIC are parties to an Investment Agreement dated
as of March 14, 1994 (the "Investment Agreement") pursuant to which TCIC
purchased 2,109,000 shares of TSX Common Stock, par value $.01 per share (the
"Common Stock"). Contemporaneously therewith, the Company and TCIC entered into
a Registration Rights Agreement dated as of March 14, 1994 (the "Registration
Rights Agreement") affording TCIC certain registration rights with respect to
such shares and any additional shares of Common Stock held by TCIC from time to
time during the term thereof. Section 4.04 of the Investment Agreement granted
certain preemptive rights to TCIC with respect to the issuance by the Company
of, among other things, any Additional Common Shares (as defined in the
Investment Agreement) or options to subscribe for or to purchase Additional
Common Shares. Share and per share amounts set forth in this Agreement have been
adjusted as appropriate to reflect the two-for-one stock split in 1994 and the
three-for-two stock split in 1996.
(C) TCIC transferred and assigned its rights and obligations under the
Investment Agreement and the Registration Rights Agreement to Optionee.
(D) The Company has heretofore granted stock options to qualified
employees under the terms of the Company's Long-Term Incentive Compensation
Program ("LTIP") for options to purchase shares of Common Stock, thereby
entitling TCIC to preemptive rights to Options to purchase a total of 28,089
shares of Common Stock at the Exercise Prices and for the respective terms
expiring as set forth hereinafter. Accordingly, the parties have entered into
this Agreement for the purpose of ratifying and confirming the grants to the
Optionee of Options to purchase Common Stock in accordance with such preemptive
rights.
Agreement
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the parties hereby agree as follows:
1. Grant of Options.
<PAGE>
The Company has granted and does hereby ratify and confirm the grants as
of the respective dates hereinafter set forth of the following Options (the
"Options") to purchase shares of Common Stock of the Company on the terms herein
provided:
(a) An Option to purchase 5,460 shares of Common Stock was
granted and is hereby ratified and confirmed as of January 4, 1996 at a
purchase price (the "Exercise Price") of $12.83 per share, which Option
shall be exercisable by the Optionee in whole or in part at any time or
times for a period commencing as of January 4, 1996 and expiring at the
close of business on January 4, 2006 .
(b) An Option to purchase 6,824 shares of Common Stock was
granted and is hereby ratified and confirmed as of April 15, 1996 at an
Exercise Price of $20.00 per share, which Option shall be exercisable by
the Optionee in whole or in part at any time or times for a period
commencing as of April 15, 1996 and expiring at the close of business on
April 15, 2006.
(c) An Option to purchase 4,913 shares of Common Stock was
granted and is hereby ratified and confirmed as of June 5, 1996 at an
Exercise Price of $20.00 per share, which Option shall be exercisable by
the Optionee in whole or in part at any time or times for a period
commencing as of June 5, 1996 and expiring at the close of business on
June 5, 2006.
(d) An Option to purchase 20,472 shares of Common Stock was
granted and is hereby ratified and confirmed as of June 25, 1996 at an
Exercise Price of $19.33 per share, which Option shall be exercisable by
the Optionee in whole or in part at any time or times for a period
commencing as of June 25, 1996 and expiring at the close of business on
June 25, 2006.
(e) An Option to purchase 6,824 shares of Common Stock was
granted and is hereby ratified and confirmed as of June 25, 1996 at an
Exercise Price of $15.83 per share, which Option shall be exercisable by
the Optionee in whole or in part at any time or times for a period
commencing as of June 25, 1996 and expiring at the close of business on
June 25, 2006.
(f) An Option to purchase 40,435 shares of Common Stock was
granted and is hereby ratified and confirmed as of July 25, 1996 at an
Exercise Price of $15.75 per share, which Option shall be exercisable by
the Optionee in whole or in part at any time or times for a period
commencing as of July 25, 1996 and expiring at the close of business on
July 25, 2006.
The shares of Common Stock issuable upon exercise of an Option are
referred to herein as "Option Stock."
2. Exercise of Options.
2.1 Method of Exercise.
<PAGE>
Each Option shall be exercisable, in whole or in part, by written notice
to the Company stating the number of shares of Common Stock to be purchased and
accompanied by full payment of the Exercise Price for the shares of Common Stock
issuable upon such exercise.
2.2 Payment of Exercise Price.
The Exercise Price for the shares of Common Stock issuable upon exercise
of each Option shall be paid (i) in cash, by uncertified check, certified check
or bank draft, or (ii) by the surrender, in whole or in part, of issued and
outstanding shares of Common Stock of the Company (not including the shares of
Common Stock issuable upon exercise of the Option), which shall be credited
against the Exercise Price at the Fair Market Value (as defined below) of the
shares surrendered on the date of the written notice of exercise of the Option.
2.3 Fair Market Value.
For purposes of this Agreement, "Fair Market Value" of the Common Stock
shall be the closing sale price of a share of Common Stock as published by the
national securities exchange on which the shares are traded on the applicable
date (provided, that if the shares of Common Stock are traded on more than one
national securities exchange, Fair Market Value shall be the closing sale price
on the applicable date published by the exchange selected by the Company). If
the exchange is closed for trading on such date, or if the Common Stock does not
trade on such date, then Fair Market Value shall be the closing sale price on
the date the Common Stock last traded on such exchange prior to the applicable
date.
3. Non-Transferability.
The Options granted hereby may not be transferred by the Optionee other
than to a corporation, partnership or other entity controlling, controlled by or
under common control with TCIC (collectively, the "TCIC Affiliates").
4. Representations, Warranties and Covenants of the Company.
The Company represents and warrants to and agrees with Optionee as
follows:
4.1 Organization, Good Standing, Authority and Approval.
The Company is duly organized as a corporation and is validly existing
and in good standing under the laws of Nevada. The Company has the corporate
power and authority to execute and deliver this Agreement. The execution and
delivery of this Agreement by the Company and the consummation of the
transactions contemplated by this Agreement (including the issuance of the
shares of Option Stock) have been duly authorized and approved by all necessary
corporate action of the Company, and this Agreement is a valid and binding
obligation of the Company, enforceable in accordance with its terms. This
Agreement and its execution and delivery by the Company do not, and the
consummation of the transaction contemplated by this Agreement and the issuance
of the shares of Option Stock will not, constitute a violation of or a default
(whether with notice or the lapse of time or both) under the Articles of
Incorporation or Bylaws of the Company, any law to which the Company is subject,
any provision of any
<PAGE>
agreement, instrument, order, judgment or decree to which the Company is a party
or to which the Company or any of its assets is subject, or any rule of, or any
provision of the Company's Listing Agreement with, the National Association of
Securities Dealers, Inc.
4.2 Authorization of Shares of Option Stock.
Upon delivery of stock certificates by the Company and receipt by the
Company of the full amount of the Exercise Price therefor, the shares of Option
Stock, when issued and delivered in accordance with the provisions of this
Agreement, will be duly authorized, validly issued, fully paid and nonassessable
outstanding shares of Common Stock of the Company.
4.3 Company's Obligations.
The Company shall (1) at all times during the term of each Option
reserve and keep available such number of shares of Common Stock as will be
sufficient to satisfy the requirements of this Agreement, (2) pay all original
issue and transfer taxes with respect to the issue and transfer to the Optionee
of shares of Option Stock pursuant to the Options and all other fees and
expenses necessarily incurred by the Company in connection therewith, and (3)
from time to time use its best efforts to comply with all laws and regulations
which shall be applicable thereto.
5. Representations, Warranties and Covenants of Optionee.
Optionee represents and warrants to and agrees with the Company as
follows:
5.1 Organization, Good Standing, and Authority Approval.
Optionee is duly organized as a corporation and is validly existing and
in good standing under the laws of Delaware. Optionee has the corporate power
and authority to execute and deliver this Agreement. The execution and delivery
of this Agreement by Optionee and the consummation of the transactions
contemplated by this Agreement have been duly authorized and approved by all
necessary corporate action of Optionee, and this Agreement is a valid and
binding obligation of Optionee.
5.2 Acquisition for Own Account.
The shares of Option Stock to be issued and delivered to the Optionee
pursuant to the Options (unless such shares have first been registered under the
Securities Act of 1933, as amended (the "1933 Act")) shall be acquired by the
Optionee for investment for the Optionee's own account and not with a view to,
or for, sale or other distribution thereof, and that the Optionee has no present
intention to sell or otherwise distribute any shares of Option Stock to be
issued or delivered to the Optionee pursuant to the Options, except in a manner
which will not violate the provisions of any applicable federal or state
securities laws, rules or regulations.
6. Conditions To Issuance of Shares.
<PAGE>
If at the time of exercise of an Option, there does not exist either (a)
an effective registration statement under the 1933 Act, with respect to the
shares of Option Stock subject to the Option, (b) an opinion of counsel,
satisfactory to the Company, to the effect that such registration is not
required under one or more of the exemptions provided under the 1933 Act, or (c)
a "no action" letter, with respect to the proposed issuance of such shares,
issued by the staff of the Securities and Exchange Commission and delivered to
the Company, then such shares of Option Stock may only be issued with an
appropriate restrictive legend in accordance with Section 8 hereof.
7. Transfer Restrictions; Legend on Certificate.
The Optionee acknowledges that the Option Stock must be held
indefinitely unless subsequently registered under the 1933 Act and the
securities laws of every jurisdiction applicable to such resale or unless
exemptions from such registration requirements are available. The Company will
be entitled to place conspicuously upon each certificate representing shares of
Option Stock a legend as required by Article 15 of the Articles of Incorporation
of the Company and a legend substantially in the following form:
THE SECURITIES REPRESENTED HEREBY HAVE BEEN NOT REGISTERED UNDER UNITED
STATES FEDERAL OR STATE SECURITIES LAWS AND MAY NOT BE OFFERED FOR SALE,
SOLD OR OTHERWISE TRANSFERRED OR ASSIGNED VALUE, FOR DIRECTLY OR
INDIRECTLY, NOR MAY THE SECURITIES BE TRANSFERRED ON THE BOOKS OF THE
CORPORATION, WITHOUT REGISTRATION OF SUCH SECURITIES UNDER ALL
APPLICABLE UNITED STATES FEDERAL OR STATE SECURITIES LAWS OR COMPLIANCE
WITH AN APPLICABLE EXEMPTION THEREFROM, SUCH COMPLIANCE, AT THE OPTION
OF THE CORPORATION, TO BE EVIDENCED BY AN OPINION OF THE HOLDER'S
COUNSEL, IN FORM REASONABLY ACCEPTABLE TO THE CORPORATION, THAT NO
VIOLATION OF SUCH REGISTRATION PROVISIONS WOULD RESULT FROM ANY PROPOSED
TRANSFER OR ASSIGNMENT.
Notwithstanding the foregoing, the Optionee may transfer the shares of
Option Stock to any TCIC Affiliate.
8. Registration Rights.
The provisions of the Registration Rights Agreement shall be applicable
to the shares of the Option Stock, and the Optionee shall be entitled to
exercise all of the rights granted to TCIC under the Registration Rights
Agreement with respect to the shares of Option Stock.
9. Adjustments Upon Changes in Capitalization.
The Exercise Price and the number or kind of shares subject to each
Option are subject to adjustment in case the Company should at any time issue
additional shares of its Common Stock as a stock dividend, or in case the shares
of its Common Stock should at any time be
<PAGE>
subdivided into a greater number of shares, or in case the outstanding shares of
its Common Stock should be combined by reclassification or otherwise into a
lesser number of shares, or in case the Company shall merge, consolidate with or
into another corporation or entity, or another corporation or entity merges into
the Company, or in the case of any sale or transfer of all or substantially all
of the assets of the Company, or in the case of a capital or reorganization
recapitalization not involving a merger, consolidation or sale or transfer of
all or substantially all of the assets of the Company. The adjustment will
entitle the Optionee to receive, for the same aggregate Exercise Price, in lieu
of securities receivable upon the exercise of any part of an Option prior to any
such dividend, subdivision, reclassification, combination, sale, transfer or
reorganization, the securities to which the Optionee would have been entitled if
the Optionee had exercised any part of the Option immediately prior to the
record date or effective date of the stock dividend, subdivision,
reclassification, combination, sale, transfer or reorganization. Neither the
issuance of stock for consideration, the issuance of stock on the exercise of
stock rights, options or warrants, nor the issuance of stock on the conversion
of a debenture or of a share of capital stock shall be considered a change in
the Company's capital structure.
No fractional shares of Option Stock shall be issued upon any exercise
of an Option following an adjustment made pursuant to this Section 10, and the
aggregate Exercise Price paid shall be appropriately adjusted on account of any
fractional share not issued upon such an exercise.
10. The Optionee's Rights as Shareholder.
The Optionee shall have no rights as a shareholder with respect to any
shares of Option Stock until the date of the exercise of the applicable Option
and the issuance of the shares of Option Stock and then only to the extent that
there has been issued one or more certificates for such shares of Option Stock
to said the Optionee upon the due exercise in whole or in part of such Option.
No adjustment shall be made for dividends (ordinary or extraordinary, whether in
cash, securities or other property) or distributions or other rights for which
the record date precedes the date such stock certificates are issued.
11. Applicability of Section 16(b) of the 1934 Act.
The grant of each Option may, under Section 16 of the 1934 Act, be
considered a "purchase" of an equity security subject to the "short-swing"
profit rules of Section 16(b). The Optionee is urged to consult its legal
advisor regarding the applicability of Section 16 to its transactions in equity
securities of the Company, including the granting to the Optionee of the Option.
In this connection, the Optionee agrees not to sell, during the six month period
immediately following the date of the grant of each Option, any shares of Option
Stock which may be acquired during such period upon exercise of the Option.
12. General.
12.1 Entire Agreement.
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This Agreement, subject to the matters described in the Preliminary
Statement, contains all of the agreements and understandings between the parties
hereto, and no oral agreements or written correspondence shall be held to affect
the provisions hereof.
12.2 Waiver.
No waiver by any party hereto of any breach of any covenant, condition
or agreement hereof on the part of the parties hereto to be kept and performed
shall be considered to constitute a waiver of any other covenant, condition or
provision, or of any subsequent breach thereof.
12.3 Notices.
Any notice, demand, request, waiver or other communication under this
Agreement must be in writing and will be deemed to have been duly given (i) on
the date of delivery if delivered to the address of the party specified below
(including delivery by courier), (ii) on the fifth day after mailing if mailed
to the party to whom notice is to be given to the address specified below, by
first class mail, certified or registered, return receipt requested, postage
prepaid, or (iii) on the date of transmission if sent by facsimile transmission
to the facsimile number given below and if telephonic confirmation of receipt is
obtained promptly after completion of transmission, as follows:
If to Optionee: c/o TCI Communications, Inc.
5619 DTC Parkway
Englewood, Colorado 80111
Attn: Bernard W. Schotters, II
Facsimile: (303) 488-3200
With a copy similarly addressed: Attn: Legal Department
If to the Company: TSX Corporation
4849 North Mesa, Suite 200
El Paso, Texas 79912
Attn: William H. Lambert, Chairman,
President and Chief Executive Officer
Facsimile: (915) 543-4888
With a copy to: Kemp, Smith, Duncan & Hammond, P.C.
2000 Norwest Plaza
El Paso, Texas 79901-1441
Attn: Tad R. Smith
Facsimile: (915) 546-5360
Either party may from time to time change its address or facsimile number for
the purpose of notices to that party by a similar notice specifying a new
address or facsimile number, but no
<PAGE>
such change will be deemed to have been given until it is actually received by
the party sought to be charged with its contents.
12.4 Specific Performance.
The parties acknowledge that there will be no adequate remedy at law for
a violation by the Company of its obligations set forth in this Agreement and
its obligations to issue and sell the shares of Option Stock pursuant to this
Agreement and that, in addition to any other remedies which may be available to
Optionee for a violation of those obligations, those obligations will be
specifically enforceable by Optionee in accordance with their terms.
12.5 Survival of Representations and Warranties.
All representations and warranties set forth in this Agreement will
survive the Closing.
12.6 Amendments.
This Agreement may not be amended, modified, waived, discharged or
terminated orally, but only by an instrument in writing signed by the party
against which enforcement thereof is sought.
12.7 Certain Rules of Construction.
This Agreement shall be construed in accordance with, and shall be
governed by, the laws of the State of Texas. In the event any court of competent
jurisdiction shall declare any portion of this Agreement to be invalid, the
remainder of this Agreement shall not be invalidated thereby, but shall remain
in full force and effect. The captions in this Agreement are for reference
purposes only and will not in any way affect the meaning or interpretations of
the text of this Agreement. Where the context requires, words in the singular
shall be deemed to include the plural and vice versa.
12.8 Benefits of Agreement.
Subject to the provisions of Section 4, this Agreement will be binding
upon and will inure to the benefit of the parties and their respective
successors and assigns. Neither this Agreement nor any of the right or
obligations of a party hereunder may be assigned without the consent of the
other party, provided that the Optionee may assign its rights and delegate its
obligations to any TCIC Affiliate.
12.9 Attorneys' Fees.
In the event of any action or suit based upon or arising out of any
alleged breach by any party of any representation, warranty, covenant or
agreement contained in this Agreement, the prevailing party will be entitled to
recover reasonable attorneys' fees and other costs of such action or suit from
the other party.
12.10 Counterparts.
<PAGE>
This Agreement may be executed in one or more counterparts, each of
which will be deemed an original.
IN WITNESS WHEREOF, the Company and the Optionee have executed this
Agreement
TSX CORPORATION
By: /s/ William H. Lambert
---------------------------------------
William H. Lambert, Chairman,
President and Chief Executive Officer
TCI TSX, INC.
By: /s/ David Boileau
--------------------------------------
Name: David Boileau
Title: Vice President
