DEPOSIT AND DISTRIBUTION AGREEMENT Among TIME WARNER INC., COMPUTERSHARE INC., COMPUTERSHARE TRUST COMPANY, N.A., and TIME WARNER CABLE INC. Dated as of February 25, 2009
Exhibit
99.10
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Among
COMPUTERSHARE
INC.,
COMPUTERSHARE
TRUST COMPANY, N.A.,
and
TIME
WARNER CABLE INC.
Dated
as of February 25, 2009
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EXECUTION COPY
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Schedule 1 Restricted
Stock Held by Certain Directors Pursuant to Equity Compensation
Plans
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21
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Schedule 10(c) TWX
Authorized Representatives
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22
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Schedule 29 Payment
of Dividends on TWX Common Stock
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23
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EXECUTION COPY
This Deposit and Distribution Agreement
(this “Agreement”) is
entered into as of this 25th day of February, 2009, between Time Warner Inc., a
Delaware corporation (“TWX”), Computershare
Inc., a Delaware corporation (“Computershare”),
Computershare Trust Company, N.A., a national banking association (together with
Computershare, the “Depository”), and
Time Warner Cable Inc., a Delaware corporation (“TWCable”). Unless
otherwise provided herein, capitalized terms used herein shall have the meaning
ascribed to such terms in Section 1 hereof.
WHEREAS, TWX, TWCable, Time Warner
Entertainment Company, L.P., TW NY Cable Holding Inc., Warner Communications
Inc., Historic TW Inc. and American Television and Communications Corporation
have entered into a Separation Agreement, dated as of May 20, 2008 (as it
may be amended from time to time, the “Separation
Agreement”), for the purpose of distributing all of the shares of TWCable
Capital Stock owned by TWX at the time of the Distribution to Eligible Holders
as a Spin-Off, a Split-Off or a combination thereof (the “Distribution”);
WHEREAS, if, pursuant to the terms of
the Separation Agreement, TWX elects to effect all or a portion of the
Distribution as a Split-Off, TWX will commence an exchange offer (hereinafter
referred to, together with any amendments or extensions thereof, as the “Exchange Offer”) to
exchange outstanding shares of TWX Common Stock for shares of TWCable Capital
Stock, upon the terms and subject to the conditions of the Offer to Exchange
(the “Offer to
Exchange”) and the related Letter of Transmittal (“Letter of
Transmittal”), including the instructions set forth therein;
WHEREAS, pursuant to
Section 3.01(e) of the Separation Agreement, TWX has agreed with TWCable to
deposit or cause to be deposited, prior to the Distribution all of the shares of
TWCable Capital Stock held by it or any of its Subsidiaries (the “Deposited TWCable
Stock”) with a distribution agent;
WHEREAS, the Depository is a nationally
recognized bank or trust company and is presently the transfer agent and
registrar for the TWX Common Stock; and
WHEREAS, TWX desires that the
Depository act as the distribution agent in connection with the Distribution,
and the Depository has indicated its willingness to do so.
NOW, THEREFORE, in consideration of the
mutual covenants contained herein the parties hereto agree as
follows:
“Agreement” has the
meaning ascribed thereto in the preamble to this Agreement.
“BNYMellon” shall mean
Bank of New York Mellon, TWCable’s Stock Transfer Agent for, prior to the
Recapitalization, TWCable Class A Common Stock and, following the
Recapitalization and the TWCable Reverse Stock Split, if applicable, TWCable
Common Stock.
“Clean-Up Dividend”
means a pro rata dividend of any shares of TWCable Capital Stock owned by TWX or
any of its Subsidiaries following the consummation or termination of the
Exchange Offer.
“Computershare” has
the meaning ascribed thereto in the preamble to this Agreement.
“Confidential
Information” has the
meaning ascribed thereto in Section 27(b) of this Agreement.
“Deposited TWCable
Stock” has the meaning ascribed thereto in the recitals to this
Agreement.
“Depository” has the
meaning ascribed thereto in the preamble to this Agreement.
“Distribution” has the
meaning ascribed thereto in the recitals to this Agreement.
“Distribution Record
Date” shall mean a time and date to be determined, in accordance with the
terms and conditions of the Separation Agreement, by the board of directors of
TWX as the record date for determining the stockholders of TWX entitled to
receive shares of TWCable Capital Stock in the Distribution if the Distribution
is effected, in whole or in part, as a pro rata dividend (as a Clean-Up Dividend
or as a Spin-Off).
“Direct Registration
System” means a system administered by The Depository Trust &
Clearing Corporation whereby registered security owners hold their assets on the
books and records of the transfer agent in book-entry form.
“Eligible Holders”
shall mean (i) to the extent that the Distribution is effected as a
Spin-Off, the holders of Eligible Shares and (ii) to the extent that the
Distribution is effected as a Split-Off, the holders of Eligible Shares validly
tendered and not withdrawn pursuant to the Exchange Offer.
“Eligible Holders Deposit
Period” has the meaning ascribed thereto in Section 5(b) of this
Agreement.
“Eligible Shares”
shall mean (i) to the extent that the Distribution is effected as a
Spin-Off or in connection with a Clean-Up Dividend, the shares of TWX Common
Stock outstanding on the Distribution Record Date other than the shares of TWX
Common Stock held by certain directors of TWX that are subject to restrictions
on transfers pursuant to equity compensation plans, as set forth on
Schedule 1 attached hereto, and (ii) to the extent that the
Distribution is effected as a Split-Off, the shares of TWX Common Stock
outstanding and eligible for acceptance for exchange in the Exchange
Offer.
“Exchange Offer” has
the meaning ascribed thereto in the recitals to this Agreement.
“Letter of
Transmittal” has the meaning ascribed thereto in the recitals to this
Agreement.
“Offered Shares” has
the meaning ascribed thereto in Section 2(a) of this
Agreement.
“Offer to Exchange”
has the meaning ascribed thereto in the recitals to this Agreement.
“Person” shall mean an
individual or a partnership, corporation, limited liability company,
association, joint stock company, trust, joint venture, unincorporated
organization or other entity, without regard to whether such entity is treated
as disregarded for U.S. Federal income tax purposes.
“Recapitalization”
means the filing with the Secretary of State of the State of Delaware by TWCable
of an amended charter of TWCable pursuant to the terms of which, each of the
outstanding shares of the TWCable Class A Common Stock and TWCable Class B
Common Stock shall be automatically converted to one fully paid and
non-assessable share of TWCable Common Stock.
“Separation Agreement”
has the meaning ascribed thereto in the recitals to this Agreement.
“Shares Release
Notification” shall mean irrevocable instructions from TWX to the
Depository to deliver the appropriate number of shares of TWCable Capital Stock
to the Eligible Holders (calculated pursuant to TWX’s written instructions which
shall be consistent with Sections 3.02(a)-(c) of the Separation
Agreement).
“Special Dividend”
means a special cash dividend to be paid to holders of TWCable Class A Common
Stock and TWCable Class B Common Stock as of a record date determined by the
Board of Directors of TWCable pursuant to the terms of the Separation
Agreement.
“Special Dividend Credit
Agreement” shall mean the Credit Agreement, dated as of June 30,
2008, among TWCable, as the borrower, and the lenders party thereto, as it may
be amended from time to time.
“Spin-Off” means the
Distribution in the form of a dividend of shares of TWCable Capital Stock
distributed to Eligible Holders on a pro rata basis.
“Split-Off” means the
Distribution in the form of an exchange of TWCable Capital Stock for Eligible
Shares.
“Stock Deposit” has
the meaning ascribed thereto in Section 3(b) of this
Agreement.
“Subsidiary” shall
mean, with respect to a specified Person, a partnership, corporation, limited
liability company, association, joint stock company, trust, joint venture,
unincorporated organization, or other entity at least 50% of the outstanding
voting or equity interests of which are owned by such specified Person or by one
or more other Subsidiaries of such specified Person; provided, however, that for
purposes of this Agreement, none of TWCable or any of its Subsidiaries shall be
considered a Subsidiary of TWX.
“TWCable” has the
meaning ascribed thereto in the preamble to this Agreement.
“TWCable Capital
Stock” shall mean (i) prior to the Recapitalization, collectively,
the TWCable Class A Common Stock and the TWCable Class B Common Stock
and (ii) from and after the Recapitalization and, if applicable, the
TWCable Reverse Stock Split, the TWCable Common Stock.
“TWCable Class A Common
Stock” shall mean the class A common stock of TWCable, par value
$0.01 per share.
“TWCable Class B Common
Stock” shall mean the class B common stock of TWCable, par value
$0.01 per share.
“TWCable Common Stock”
shall mean the common stock, par value $0.01 per share, of TWCable into which
the issued and outstanding shares of TWCable Class A Common Stock and TWCable
Class B Common Stock are reclassified in connection with the Recapitalization
and, if applicable, after giving effect to the TWCable Reverse Stock
Split.
“TWCable Reverse Stock
Split” has the meaning ascribed thereto in Section 12 of this
Agreement.
“TWX” has the meaning
ascribed thereto in the preamble to this Agreement.
“TWX Common Stock”
shall mean the common stock of TWX, $0.01 par value per share.
“TWX Deposit Period”
has the meaning ascribed thereto in Section 4(a) of this
Agreement.
(a) TWX
hereby appoints the Depository to serve as the Distribution Agent pursuant to
the Separation Agreement and to hold the Deposited TWCable Stock for the purpose
of (i) if TWX elects to effect all of the Distribution as a Spin-Off,
distributing whole shares of Deposited TWCable Stock to the Eligible Holders as
provided herein and/or aggregating the fractional shares of Deposited TWCable
Stock that would otherwise be received by any Eligible Holder in the
Distribution and, on behalf of such Eligible Holder, selling such shares (or
causing such shares to be sold) in the open market and distributing the net
proceeds thereof to the Eligible Holders as provided herein or (ii) if TWX
elects to effect all or a portion of the Distribution as a
Split-Off: (x) exchanging the shares of TWCable Capital Stock
(the “Offered
Shares”) for Eligible Shares and (y) distributing the remaining
shares of TWCable Capital Stock held by
TWX or any of its Subsidiaries following the consummation or termination of the
Exchange Offer, if any, to Eligible Holders in connection with a Clean-Up
Dividend.
(b) The
Depository agrees to serve as the distribution agent upon the terms and
conditions set forth herein.
(c) If
TWX elects to effect all or a portion of the Distribution as a Split-Off, TWX
will deliver to the Depository before commencement of the Exchange Offer copies
of each document that will be distributed to Eligible Holders in connection with
the Exchange Offer, including a copy of the Offer to Exchange and a copy of the
Letter of Transmittal to be used by Eligible Holders in effecting the exchange
of Eligible Shares.
(a) TWX
shall, or shall cause its Subsidiaries to, deposit with the Depository all of
the shares of TWCable Capital Stock that it or any of its Subsidiaries holds as
of such time (i) if TWX elects to effect all or a portion of the
Distribution as a Split-Off, at the time TWCable borrows under the Special
Dividend Credit Agreement or (ii) if TWX elects to effect the Distribution
in whole as a Spin-Off, simultaneously with the receipt by TWX of its share of
the Special Dividend.
(b) If
TWX elects to effect all of the Distribution as a Spin-Off, once TWX deposits
the Deposited TWCable Stock with the Depository (the “Stock Deposit”), the
Depository shall hold the Deposited TWCable Stock for the benefit of
(i) TWX from the time of the Stock Deposit until the Distribution Record
Date and (ii) the Eligible Holders from and after the Distribution Record
Date until the completion of the Distribution.
(c) If
TWX elects to effect all or a portion of the Distribution as a Split-Off, once
TWX deposits the Deposited TWCable Stock with the Depository, the Depository
shall hold the Deposited TWCable Stock for the benefit of (i) TWX from the
time of the Stock Deposit until the Eligible Shares are accepted for payment and
(ii) Eligible Holders after Eligible Shares are accepted for payment until
the completion of the Distribution.
(d) Upon
the receipt by TWX of its portion of the Special Dividend, TWX shall (i) direct
TWCable and BNYMellon, as transfer agents and registrars of the Class B Common
Stock and Class A Common Stock, respectively, to register the Deposited TWCable Stock in
the name of Computershare as depository for the benefit of TWX until the Distribution Record Date and
(ii) subject to and in accordance with the Separation Agreement, direct
BNYMellon, as transfer agent and registrar of the TWCable Common Stock,
following the Recapitalization , to register the Deposited TWCable Stock in the
name of Computershare as depository for the benefit of TWX until the Distribution Record Date and
as distribution agent on behalf of the Eligible Holders from the Distribution
Record Date until such time as BNYMellon distributes the Deposited TWCable Stock
pursuant the instructions received by Depository and the terms of this
Agreement.
(a) TWX
hereby authorizes the Depository to vote the Deposited TWCable Stock on behalf
of TWX during the period that the Depository holds the Deposited TWCable Stock
for the benefit of TWX pursuant to Section 3 of this Agreement (the “TWX Deposit Period”),
or to give written consent on behalf of TWX during the TWX Deposit Period, in
person or by proxy, at all meetings of stockholders of TWCable (whether at
regular or special meetings or pursuant to written consent), and in all
proceedings in which the vote or consent, written or otherwise, of the holders
of TWCable Capital Stock may be required or authorized by law; provided, however, that the
Depository is only authorized to vote the Deposited TWCable Stock, or give
written consent on behalf of TWX, in accordance with TWX’s express written
instructions set forth in Section 4(b) of this Agreement.
(b) For
purposes of Section 4(a) of this Agreement, TWX hereby irrevocably
instructs the Depository to vote, or give written consent with respect to, the
Deposited TWCable Stock in the same proportion as all other shares of TWCable
Capital Stock are voted, or with respect to which consent is provided, with
respect to the particular matter subject to a vote or consent of TWCable
stockholders; provided that TWX and
the Depository shall have received from TWCable written notice regarding how the
other shares of TWCable Capital Stock were voted or consented.
(a) During
the TWX Deposit Period, TWX shall remain the legal and beneficial owner of the
Deposited TWCable Stock. Except as specifically authorized by this
Agreement, the Depository shall have no power or authority to sell, transfer,
vote or otherwise deal in or with the Deposited TWCable Stock.
(b) During
the period that the Depository holds the Deposited TWCable Stock for the benefit
of the Eligible Holders pursuant to Section 3 of this Agreement (the “Eligible Holders Deposit
Period”), the Eligible Holders shall be deemed to be the beneficial
owners of the Deposited TWCable Stock.
(a) If
TWCable pays or issues cash dividends, makes other cash distributions on the
Deposited TWCable Stock or effects the TWCable Reverse Stock Split during the
TWX Deposit Period, the Depository shall accept and receive such dividends and
distributions (including any cash-in-lieu payments in respect of the TWCable
Reverse Stock Split). Upon receipt of such TWCable dividends and
distributions (including any cash-in-lieu payments in respect of the TWCable
Reverse Stock Split), such dividends and distributions (including any
cash-in-lieu payments in respect of the TWCable Reverse Stock Split) shall be
immediately distributed by the Depository to TWX.
(b) If
TWCable pays or issues cash dividends or makes other cash distributions on the
Deposited TWCable Stock (other than any cash-in-lieu payments in respect of the
TWCable Reverse Stock Split) during the Eligible Holders Deposit Period or pays
or issues any dividends or distributions in shares of TWCable Capital Stock
during the TWX Deposit Period or the Eligible Holders Deposit Period, the
Depository shall accept and receive such dividends and
distributions. Upon receipt of such TWCable dividends and
distributions, such dividends and distributions shall be distributed by the
Depository to the Eligible Holders pro rata upon the Distribution.
(c) In
the performance of its duties to deliver dividends and distributions under this
Agreement, the Depository shall not be obligated to risk its own funds and will
not be liable for taxes or other charges related to the delivery of such
dividends or distributions.
If TWX elects to effect all or a
portion of the Distribution as a Split-Off, in connection with the Exchange
Offer and subject to Section 8(b) of this Agreement, the Depository is
hereby authorized and directed, and hereby agrees to:
(a) Mail,
via first-class mail, postage prepaid, as soon as practicable following the
Effective Time (as such term will be defined in the Offer to Exchange), to each
Eligible Holder as of the Effective Time (i) a copy of the Letter of
Transmittal (including the Guidelines for Certification of Taxpayer
Identification Number on Substitute Form W-9) relating to Eligible Shares
having thereon the name and address of such Eligible Holder, (ii) an
envelope addressed to the Depository for use by such Eligible Holder in
exchanging his or her Eligible Shares for Offered Shares, (iii) a copy of
the letter from TWX to Eligible Holders in the form provided by TWX and (iv) a
copy of the S-4, prospectus, broker instruction letters and the
like.
(b) Accept
and respond promptly and accurately to all telephone requests for information
relating to the exchange of Eligible Shares in connection with the Exchange
Offer and, to the extent necessary, direct any inquiries to an information agent
appointed by TWX.
(c) Receive
and examine all certificates for Eligible Shares submitted for exchange and
accompanying Letters of Transmittal for proper execution in accordance with the
terms thereof. Such examination shall include a determination that
such certificates for Eligible Shares are in proper form for transfer on the
share registry books of the Depository and verification that no stop order has
been issued against the shares represented by the surrendered certificates for
Eligible Shares by reason of loss, theft, destruction or other
invalidity. If more than one person is the record holder of any
Eligible Shares, the Letter of Transmittal must be signed by each record
holder. If a holder fails to submit all share certificates held by
such holder (in contradiction of such holder’s instructions on the applicable
Letter of Transmittal), the Depository shall contact such holder in writing to
follow up regarding such other certificates (unless otherwise instructed by
TWX).
(d) Retain
or return to Eligible Holders (as applicable) those exchange documents
evidencing some deficiency in execution and make reasonable attempts to inform
such Eligible Holder of the need to correct such deficiency. The
Depository shall maintain complete and accurate records in readily searchable
paper, microfiche or computerized form of such deficiencies and returns, in
compliance with applicable record retention laws, rules or
regulations.
(e) Accept
exchanges signed by persons acting in a fiduciary or representative capacity
only if such capacity is shown on the Letter of Transmittal and proper evidence
of authority to act has been submitted to the Depository.
(f) Accept
exchanges from persons alleging loss, theft or destruction of certificates for
Eligible Shares upon receipt of an appropriate affidavit of loss and a corporate
bond of indemnity, each in such form and substance as approved by the Depository
and which shall include indemnification of TWX and the Depository.
(g) Accept
exchanges of Eligible Shares held in book-entry form or, if so requested by TWX,
instruct BNYMellon to issue Offered Shares other than in the name that appears
on the certificates for Eligible Shares submitted for exchange, where
(i) such certificates for Eligible Shares are duly endorsed or accompanied
by appropriately signed stock powers, (ii) the signature thereon is
guaranteed by a participant in a signature guarantee program approved by the
Securities Transfer Association and (iii) any necessary stock transfer
taxes are paid and proof of such payment is submitted or funds therefor are
provided to the Depository, or it is established by the stockholder to the
satisfaction of the Depository that no such taxes are due and
payable.
(h) Effect
the exchange of Eligible Shares held in book-entry form and instruct BNYMellon
to issue Offered Shares in the form of a Direct Registration System statement of
ownership in a form reviewed in advance by TWX (as provided by
BNYMellon).
(i) Upon
expiration of the Exchange Offer and assuming surrender of TWX certificate(s)
and properly executed Letters of Transmittal, in accordance with the terms of
the Offer to Exchange and subject to proration, instruct BNYMellon to issue
Offered Shares registered in the name of the Persons who deliver such Letters of
Transmittal and deliver a Direct Registration System statement of ownership to
each such Person, registered in such names as are appropriate pursuant to
properly executed Letters of Transmittal, for every share represented by such
share certificate(s); provided that no
fractional shares of Offered Shares shall be issued. If requested by
a stockholder in his or her written instructions to the Letter of Transmittal,
arrange for the issuance of single certificates for all of the Offered Shares to
which such stockholder is entitled or statement of holding reflecting offered
Shares in the Direct Registration System.
(j) Cancel
all certificates for Eligible Shares accepted for exchange and retain such
canceled certificates pending further instructions from TWX. The
Depository shall maintain complete and accurate records of such canceled shares
in readily searchable paper, microfiche or computerized form, in compliance with
applicable record retention laws, rules or regulations.
(k) Instruct
BNYMellon to promptly issue Direct Registration System statements of ownership,
or, if requested by a stockholder, the issuance and delivery of stock
certificates, of Offered Shares as provided in
paragraph (i) above.
(l) At
the request of TWX, return to TWX any and all necessary records, information and
material concerning and representing Eligible Shares in compliance with
applicable laws, except to the extent Depository is required to retain, such
records, information and material pursuant to applicable law.
(m) On
the payment date of the Clean-Up Dividend, as determined by the Board of
Directors of TWX in accordance with Section 3.01(a) and Section 3.01(b) of the
Separation Agreement, provide BNYMellon with instructions for the distribution
of the remaining shares of TWCable Capital Stock, if any, to Eligible Holders as
a Clean-Up Dividend.
(a) If
TWX elects to effect all of the Distribution as a Spin-Off, the Depository is
hereby authorized and directed to distribute the Deposited TWCable Stock to
Eligible Holders by providing no later than seven business days following the
Distribution Record Date (i) a list of Eligible Holders that sets forth the
number of whole shares of TWCable Deposited Stock that each Eligible Holder is
entitled to, to BNYMellon, (ii) a letter of instruction to BNYMellon directing
BNYMellon to distribute the Deposited TWCable Stock in accordance with such list
and (iii) to BNYMellon a full record list of the Eligible Holders, in a form and
medium reasonably acceptable to TWCable and BNYMellon, which record list will
include the address, tax identification number and Form W-9 certification of
each Eligible Holder, to the extent the Depository has such information in its
records. In addition, the Depository is hereby authorized and
directed to provide BNYMellon with a test file five business days prior to the
Distribution Record Date.
(b) Notwithstanding
anything herein to the contrary, the Depository shall not transfer the Deposited
TWCable Stock to Eligible Holders unless irrevocably instructed to do so by TWX
in a Shares Release Notification, which notification shall be delivered pursuant
to the terms of the Separation Agreement. The Shares Release
Notification shall also contain instructions on how to calculate the number of
whole shares of Deposited TWCable Stock that each Eligible Holder is entitled
to.
The Depository or Computershare, as
applicable, is hereby authorized and directed, and hereby agrees
to:
(a) Aggregate the fractional shares of TWCable
Capital Stock that would otherwise be received by any Eligible Holder in the
Distribution and, on behalf of such Eligible Holders, sell such shares (or cause
them to be sold) in the open market, and distribute the net proceeds thereof to
such Eligible Holders, after deducting any applicable taxes, brokerage charges
and commissions on a pro rata basis. Any such sales shall be in the
Depository’s sole discretion and the Depository shall determine when, how,
through which broker-dealer and at what price such shares shall be
sold. The Depository shall arrange for the issuance of a single check
to each Eligible Holder for cash in lieu of fractional shares.
(b) If
appropriate, deliver the cash in lieu of payment by first-class mail under the
provisions of the Depository’s first-class mail bond protecting the Depository
from loss or liability arising out of the non-receipt or non-delivery of such
payment or arising out of the replacement thereof, for any deliveries where
market value does not exceed the amount of the Depository’s first-class mail
bond. Any mail delivery exceeding such amount shall be delivered by
registered mail or overnight mail and shall be insured separately for the
replacement value of its contents at the time of mailing. The
Depository shall monitor the proper delivery of the aforesaid
mailings.
(c) None
of the parties hereto nor BNYMellon shall be liable to any Person in respect of
any shares of TWCable Capital Stock (or dividends or distributions with respect
thereto) or proceeds from a sale of such shares that are delivered to a public
official pursuant to any applicable abandoned property, escheat or similar
law.
(d) Pay,
upon acceptance of Eligible Shares for exchange, any dividends or distributions
declared on unexchanged shares; provided, however, that TWX
shall promptly provide funds for such dividends or distributions.
(e) Withhold
from the consideration otherwise payable to Eligible Holders pursuant to this
Agreement such amounts as are required to be withheld with respect to the making
of such payments under applicable tax law. Any amounts withheld in
accordance with this Section 9(e) shall be treated for all purposes of this
Agreement as having been paid to the Persons otherwise entitled
thereto.
(f) Prepare
and file with the appropriate governmental agency, and deliver to the
appropriate persons, all tax information forms required to be filed and
delivered with respect to dividend payments and any other distributions received
by the Depository pursuant to this Agreement during each calendar year, or any
portion thereof, during which the Depository performs services
hereunder.
(g) At
the request of TWX, return to TWX any and all necessary records, information and
material concerning and representing unexchanged Eligible Shares, except to the
extent Depository is required to retain, such records, information and material
pursuant to applicable law, rules or regulations.
(h) The
Depository shall, in compliance with applicable record retention laws, rules or
regulations, keep and maintain on a continuing basis, in an easily searchable
format complete and accurate records showing all transactions and communications
with Eligible Holders, including (i) certificates for Eligible Shares
surrendered, (ii) all Eligible Shares registered in book-entry format
exchanged for TWCable Capital Stock in certificated or uncertificated form,
(iii) all Offered Shares requisitioned from BNYMellon by the Depository,
(iv) all cash payments or distributions of Deposited TWCable Common Stock
made hereunder, (v) all documents returned to Eligible Holders as
incomplete, deficient or inappropriate; (vi) all correspondence relating to
lost or stolen Eligible Shares and (v) all letters of instruction or direction
delivered hereunder.
(i) TWX
acknowledges that the bank accounts maintained by Computershare in connection
with the services provided under this Agreement will be in the Depository’s name
and that Computershare may receive investment earnings in connection with the
investment at Computershare’s risk and for its benefit of funds held in those
accounts from time to time.
The Depository:
(a) shall
have no duties or obligations other than those specifically set forth herein or
as may subsequently be requested of the Depository by TWX, with the consent of
TWCable (not to be unreasonably withheld; provided, that to the
extent any such request is inconsistent with the Separation Agreement, any
failure to consent to such request shall be deemed to be reasonably withheld) or
by TWCable, with the consent of TWX (not to be unreasonably withheld; provided, that to the
extent any such request is inconsistent with the Separation Agreement, any
failure to consent to such request shall be deemed to be reasonably withheld),
with respect to the Distribution and agreed upon by the Depository; provided further, that to the
extent that the Depository will incur any additional costs in order to carry out
TWCable’s instructions, TWX shall be reimbursed from TWCable for the incurrence
of any of such additional costs by the Depository; provided further, however, that TWCable
shall not be responsible to reimburse TWX for costs relating to TWCable’s
subsequent requests that are intended to address omissions or actions or
instructions that have been erroneously performed or made by the
Depository.
(b) may
rely on and shall be held harmless by TWX in acting upon any certificate,
instrument, opinion, notice, letter, facsimile transmission, telegram or other
document, or any security delivered to it, and reasonably believed by it to be
genuine and to have been signed by the proper party or parties;
(c) may
rely on and shall be held harmless in acting upon written or oral instructions
from the authorized representatives of TWX set forth on Schedule 10(c) with
respect to any matter relating to its acting as Depository specifically covered
by and not inconsistent with this Agreement; and
(d) may
consult with counsel satisfactory to it (including counsel for TWX) and shall be
held harmless in relying on the written advice or opinion of such counsel in
respect of any action taken, suffered or omitted by it pursuant to this
Agreement in good faith and in accordance with such advice or opinion of such
counsel.
TWX shall pay fees for the services
rendered hereunder, as set forth in the fee schedule separately agreed to
between TWX and the Depository. The Depository shall also be entitled
to reimbursement from TWX for all reasonable and necessary expenses paid or
incurred by it in connection with the administration by the Depository of its
duties hereunder.
The parties hereto acknowledge that the
Board of Directors of TWCable has approved and TWCable may, at its discretion,
following the Recapitalization but prior to the Distribution Record Date,
implement a reverse stock split of the TWCable Common Stock whereby each three
(3) shares of TWCable Common Stock, either issued and outstanding or held by
TWCable as treasury stock, will be reclassified and changed into one (1) fully
paid and nonassessable share of TWCable Common Stock (the “TWCable Reverse Stock
Split”).
TWX covenants and agrees to indemnify
and to hold the Depository harmless against any unreasonable, documented and
itemized costs, expenses (including reasonable fees of its legal counsel),
losses or damages, which may be paid, incurred or suffered by or to which it may
become subject, arising from or out of, directly or indirectly, any claims or
liability resulting from its actions as Depository pursuant hereto; provided that such
covenant and agreement does not extend to, and the Depository shall not be
indemnified with respect to, such costs, expenses, losses and damages incurred
or suffered by the Depository as a result of, or arising out of, its negligence,
gross negligence, recklessness, bad faith or willful misconduct or, subject to
the provisions of Section 24 of this Agreement, failure of its record
systems.
Promptly after the receipt by the
Depository of notice of any demand or claim or the commencement of any action,
suit, proceeding or investigation, the Depository shall, if a claim in respect
thereof is to be made against TWX, notify TWX thereof in writing. TWX
shall be entitled to participate at its own expense in the defense of any such
claim or proceeding and, if it so elects at any time after receipt of such
notice, it may assume the defense of any suit brought to enforce any such claim
or of any other legal action or proceeding. In the event that TWX
assumes the defense of any such suit or of any other legal action or proceeding,
the Depository agrees to cooperate fully in such defense as and if requested by
TWX. In addition, if TWX assumes the defense of any such suit, or of
any other legal action or proceeding notwithstanding any other provision hereof,
the Depository shall not be entitled to reimbursement of counsel fees for
separate counsel the Depository may retain with respect to such suit or other
legal action or proceeding. For the purposes of this Section 13, the
term “expense or loss” means any amount paid or payable to satisfy any claim,
demand, action, suit or proceeding settled with the express written consent of
the Depository, and all reasonable, documented and itemized costs and expenses,
including, but not limited to, reasonable counsel fees and disbursements, paid
or incurred in investigating or defending against any such claim, demand,
action, suit, proceeding or investigation.
The Depository shall be responsible for
and shall indemnify and hold TWX harmless from and against any and all losses,
damages, costs, charges, counsel fees, payments, expenses and liability arising
out of or attributable to the Depository’s refusal or failure to comply with the
terms of this Agreement, or which arise out of Depository’s recklessness, bad
faith, negligence or willful misconduct or which arise out of the breach of any
representation or warranty of the Depository hereunder, for which the Depository
is not entitled to indemnification under this Agreement; provided, however, that
Depository’s aggregate liability during any term of this Agreement with respect
to, arising from, or arising in connection with this Agreement, or from all
services provided or omitted to be provided under this Agreement, whether in
contract, or in tort, or otherwise, is limited to, and shall not exceed one
million U.S. dollars ($1,000,000). The foregoing limitation shall not
apply to losses, damages, costs, charges, counsel fees, payments, expenses and
liability arising out of or attributable to the Depository’s recklessness, bad
faith or willful misconduct or any breach by Depository of its confidentiality
obligations.
Promptly after the receipt by TWX of
notice of any demand or claim or the commencement of any action, suit,
proceeding or investigation, TWX shall, if a claim in respect thereof is to be
made against the Depository, notify the Depository thereof in
writing. The Depository shall be entitled to participate at its own
expense in the defense of any such claim or proceeding. In the event
that the Depository assumes the defense of any such suit or other legal action
or proceeding, TWX agrees to cooperate fully in such defense as and if requested
by the Depository. In addition, if the Depository assumes the defense
of any such suit, or other legal action or proceeding notwithstanding any other
provision hereof, TWX shall not be entitled to reimbursement of counsel fees for
separate counsel TWX may retain with respect to such suit or other legal action
or proceeding. For the purposes of this Section 13, the term “expense
or loss” means any amount paid or payable to satisfy any claim, demand, action,
suit or proceeding settled with the express written consent of TWX, and all
reasonable, documented and itemized costs and expenses, including, but not
limited to, reasonable counsel fees and disbursements, paid or incurred in
investigating or defending against any such claim, demand, action, suit,
proceeding or investigation.
(a) From
time to time and after the date hereof, TWX shall deliver or cause to be
delivered to the Depository such further documents and instruments and shall do
and cause to be done such further acts as the Depository shall reasonably
request (it being understood that the Depository shall have no obligation to
make any such request) to carry out more effectively the provisions and purposes
of this Agreement, to evidence compliance herewith or to assure itself that it
is protected in acting hereunder.
(b) From
time to time after the date hereof, TWX shall provide such assistance and shall
do and cause to be done such further acts as TWCable and BNYMellon shall
reasonably request to enable TWCable and BNYMellon to obtain documents, records
and instruments from the Depository in such form and medium as TWCable shall
reasonably request including, without limitation, providing the name, phone
number and email address of a contact person at the Depository.
(a) After
the date hereof, in connection with the Distribution, TWCable shall deliver or
cause to be delivered to the Depository any documents and instruments (including
any documents and instruments relating to any shares of TWCable Capital Stock
issued as payments or dividends during the TWX Deposit Period) and shall do and
cause to be done such further acts as TWX and the Depository shall reasonably
request to enable the Depository to carry out the provisions and purposes of
this Agreement.
(b) If
during the TWX Deposit Period TWCable’s stockholders vote on or consent to any
matter, TWCable shall deliver or shall cause to be delivered to TWX and the
Depository written notice indicating how the shares of TWCable Capital Stock
(other than the Deposited Stock) have been voted or consented in order to enable
the Depository to comply with Section 4 of this Agreement.
This Agreement shall remain in effect
until the earlier of (i) the completion of the Distribution, (ii)
notification to the Depository in writing by TWX of the termination of the
Separation Agreement in accordance with its terms prior to the Distribution
Record Date, (iii) the termination by the Depository upon a material breach
of this Agreement, which remains uncured for 30 days after written notice of
such breach has been provided; provided, however, that prior
to the effectiveness of the termination of this Agreement, TWX will use its best
efforts to secure the services of a comparable depository which shall enter into
a deposit and distribution agreement with TWX and TWCable that has the same
terms as the Agreement (other than any negotiated fees) and is reasonably
acceptable to TWCable; or, (iv) 10 days’ written notice from TWX of its intent
to terminate this Agreement; provided, however, that within
10 days of the delivery of such notice and in any event prior to the
effectiveness of the termination of this Agreement, TWX will secure the services
of a comparable depository which shall enter into a deposit and distribution
agreement with TWX and TWCable that has the same terms as the Agreement (other
than any negotiated fees) and is reasonably acceptable to TWCable; provided
further, however, that in no
event shall this Agreement terminate pursuant to clauses (i), (ii) or (iv) of
this Section 16 if, at such time, TWCable has paid the Special Dividend and the
Separation Agreement has not been terminated in accordance with its
terms.
All written reports, notices and other
communications between the Depository and TWX required or permitted hereunder
shall be delivered or mailed by first-class mail, postage prepaid, telecopier or
overnight courier guaranteeing next-day delivery, addressed as
follows:
If to TWX, to:
Xxx Xxxx
Xxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attn:
General Counsel
Fax:
(000) 000-0000
with a
copy to:
Cravath,
Swaine & Xxxxx LLP
Worldwide
Plaza
000
Xxxxxx Xxxxxx
Xxx Xxxx,
XX 00000
Attention: Xxxxxxx
Xxxx
Fax: (000)
000-0000
If to the
Depository, to:
Computershare
Trust Company, N.A.
c/o
Computershare Inc.
000
Xxxxxx Xxxxxx
Xxxxxx,
XX 00000
Attn: Reorganization
Department
Fax: (000)
000-0000
If to
TWCable, to:
Time
Warner Cable Inc.
One Time
Xxxxxx Xxxxxx
Xxxxx
Xxxxx
Xxx Xxxx,
XX 00000
Attn: General
Counsel
Fax: (000)
000-0000
with a
copy to:
Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx,
XX 00000-0000
Attn: Xxxxxx
X. Xxxxxxx
Xxxxx X.
Xxxxxxxxxx
Fax: (000)
000-0000
The Depository shall report unclaimed
property with respect to cash-in-lieu of fractional shares to each state in
compliance with state laws and shall comply with Section 17Ad-17 of the
Securities Exchange Act of 1934, as amended. The Depository will
charge TWX its standard fees plus out-of-pocket expenses (including the cost of
due diligence mailings) for such services. TWCable shall instruct
BNYMellon to report unclaimed property with respect to the Deposited TWCable
Stock to each state in compliance with state laws as well as
Section 17Ad-17 of the Securities Exchange Act of 1934, as amended, and,
upon receiving a request from TWX, TWCable shall promptly send, or cause to be
sent, to TWX a copy of the reports that are filed from BNYMellon.
(a) This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York, regardless of the laws that might otherwise govern under
applicable principles of conflicts of law thereof, except to the extent the laws
of the State of Delaware are mandatorily applicable to any of the transactions
contemplated by this Agreement. Each party (a) hereby consents
to the personal jurisdiction of any New York state court or any Federal
court located in the State of New York or the State of Delaware or any
Delaware state court in the event any dispute arises under this Agreement,
(b) shall not attempt to deny or defeat such personal jurisdiction by
motion or other request for leave from any such court and (c) shall not
bring any action under this Agreement in any court other than any New York
state court or any Federal court located in the State of New York or the
State of Delaware or any Delaware state court.
(b) TWX
and TWCable, solely with respect to each other and not with respect to any other
party to this Agreement, hereby waive any right to trial by jury with respect to
any action related to or arising out of this Agreement. For the
avoidance of doubt, the Depository does not waive the right to trial by jury
with respect to any party to this Agreement and TWX does not waive its right to
trial by jury with respect to the Depository.
(c) Notwithstanding
anything to the contrary contained herein, nothing herein shall in any manner
limit the rights or remedies that the parties hereto may have under applicable
law including, without limitation, common law or equitable principles with
respect to the performance of this Agreement.
(a) Except
as provided in Section 20(b) below, neither this Agreement nor any rights
or obligations hereunder may be assigned by any party hereto without the written
consent of the other parties.
(b) The
Depository may, with prior consent of TWX, subcontract with other subcontractors
for systems, processing, telephone and mailing services, and post-Distribution
cleanup activities, as may be required from time to time; provided, however, that the
Depository shall (i) be as fully responsible to TWX and TWCable for the
acts and omissions of any subcontractor as it is for its own acts and omissions
and (ii) remain obligated under all of its covenants and agreements
hereunder.
(c) Except
as explicitly stated elsewhere in this Agreement, nothing under this Agreement
shall be construed to give any rights or benefits in this Agreement to anyone
other than the Depository, TWX and TWCable and the duties and responsibilities
undertaken pursuant to this Agreement shall be for the sole and exclusive
benefit of the Depository, TWX and TWCable. This Agreement shall
inure to the benefit of and be binding upon the parties and their respective
permitted successors and permitted assigns.
This Agreement may not be changed
orally or modified, amended or supplemented without an express written agreement
executed by each of the Depository, TWX and TWCable.
This Agreement may be executed in
separate counterparts, each of which when executed and delivered shall be an
original, but all such counterparts shall together constitute but one and the
same instrument. Any
counterpart or other signature hereupon delivered by a party by facsimile or
other electronic means shall be deemed for all purposes as constituting good and
valid execution and delivery of this Agreement by such
party.
This Agreement does not constitute an
agreement for a partnership or joint venture between the
parties. None of the parties to this Agreement shall make any
commitments with third parties that are binding on any other party hereto
without the prior written consent of such other party.
To the extent that a party is unable to
perform its obligations under the terms of this Agreement because of acts of
God, terrorist acts, strikes, equipment or transmission failure or damage
reasonably beyond its control, or other causes reasonably beyond its control,
such party shall not be liable for damages to the other parties for any damages
resulting from such failure to perform or otherwise from such
causes. Performance under this Agreement shall resume when the
affected party or parties are able to perform substantially its or their
duties.
Notwithstanding anything herein to the
contrary, no party to this Agreement shall be liable to the other parties for
any consequential, indirect, special or incidental damages under any provision
of this Agreement or for any consequential, indirect, special or incidental
damages arising out of any act or failure to act hereunder even if that party
has been advised of or has foreseen the possibility of such
damages.
If any provision of this Agreement
shall be held invalid, unlawful or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired.
(a) The
terms and conditions related to confidentiality and data security as set forth
in the Agreement for Stock Transfer Services made between TWX and the
Depository, dated May 1, 2000 and effective March 1, 2000, as amended,
shall be incorporated herein by reference to apply to any information exchanged
or transactions between TWX and the Depository and, for the avoidance of doubt,
shall in no manner bind TWCable or BNYMellon.
(b) Except
as may be required by law, TWCable shall keep all books, records, proprietary
information (including, without limitation, the list of Eligible Holders to be
provided to BNYMellon by the Depository pursuant to this Agreement and the
letters of instruction issued hereunder as well as any and all data or other
material, in whatever substantive form, whether or not compiled or otherwise
prepared by the party receiving such information, and which has been derived or
developed from or which contains or refers to any confidential or proprietary
information) (the “Confidential Information”), which are exchanged or received
in the performance of this Agreement in strict confidence and shall not
voluntarily disclose any Confidential Information to any other person, other
than BNYMellon for the express purpose of carrying out the actions required to
be performed under this Agreement. Confidential Information shall not
include any information which is (i) or comes into the public domain (other than
as a result of a wrongful disclosure by TWCable); (ii) rightfully received
from a third party without any obligation of confidentiality;
(iii) previously known to TWCable without any limitation on its use or
disclosure; (iv) independently developed by TWCable without reference to
any Confidential Information and without violating any of its obligations under
this Agreement; (v) generally made available to third parties without
restriction on disclosure; or (vi) disclosed with the prior written approval of
the TWX; provided, however, that the
personally identifiable information of all Eligible Holders (e.g., names,
addresses, social security numbers) shall at all times be held in strict
confidence regardless of whether such personally identifiable information falls
into one of the categories enumerated in subclauses (i)-(vi) of this
sentence.
(c) TWCable
shall inform BNYMellon of the confidential nature of the Confidential
Information, and, prior to the Distribution Record Date, shall enter into an
agreement in writing pursuant to which BNYMellon will be bound to use such
Confidential Information solely for the purpose of carrying out this Agreement
or its customary duties as transfer agent of TWCable.
(d) Notwithstanding
anything herein to the contrary, after the completion of the Distribution and at
the time when Eligible Holders become TWCable stockholders and BNYMellon has
entered the Eligible Holders information into its recordkeeping systems, TWCable
and BNYMellon may use such information for customary purposes as issuer of the
TWCable Common Stock and transfer agent, respectively.
All provisions of Sections 11, 13,
14, 15, 18, 19, 21, 20 and 24-28 shall survive any termination, for any reason,
of this Agreement.
This Agreement constitutes the entire
agreement between the parties hereto and supersedes any prior agreement with
respect to the subject matter hereof whether oral or written; provided, however, that nothing
contained herein shall affect, alter, amend or otherwise modify the rights and
obligations of each of TWX and TWCable and their respective Subsidiaries under
the Separation Agreement.
The process for payment of dividends on TWX
Common Stock shall be as set forth in Schedule 29 to this
Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
by their respective officers, hereunto duly authorized, as of the day and year
first above written.
|
COMPUTERSHARE
TRUST COMPANY, N.A.
|
|
||
|
By:
|
/s/
Xxxxxxx Xxxxxx
|
By:
|
/s/ Xxxxxx
X. Xxxxxxxxxx
|
|
Name:
|
Xxxxxxx Xxxxxx
|
Name:
|
Xxxxxx X.
Xxxxxxxxxx
|
|
Title:
|
Senior Vice
President
|
Title:
|
Senior Vice
President
|
|
Date:
|
February 24,
2009
|
Date:
|
February 25,
2009
|
|
|
|||
|
COMPUTERSHARE
INC.
|
TIME
WARNER CABLE INC.
|
||
|
By:
|
/s/ Xxxxxxx
Xxxxxx
|
By:
|
/s/ Xxxxx
X. Xxxxxxxxx
|
|
Name:
|
Xxxxxxx Xxxxxx
|
Name:
|
Xxxxx X.
Xxxxxxxxx
|
|
Title:
|
Senior Vice
President
|
Title:
|
Senior Vice
President
|
|
Date:
|
February 24,
2009
|
Date:
|
February 24,
2009
|
Schedule 1
Restricted Stock Held by
Certain Directors Pursuant to Equity Compensation Plans
| Name | Number of Shares of Restricted Stock |
|
Xxxxxxx
X. Xxxxxxxxxx
|
726 |
| Xxxxxx Xxxx | 726 |
| Xxxxxxx X. Xxxxx | 726 |
Schedule 10(c)
TWX
Authorized Representatives
Xxxxxx X.
Xxxxxxxxxx
Xxxxxxx
X. Xxxxxxxx
Xxxxx
Xxxxxxxxx
Xxxxxxxxx
X. Xxxxxxx
Xxxxx X.
Xxx
Xxxxxx
Xxxxxx
Schedule 29
Payment
of Dividends on TWX Common Stock
Conventions
Applicable to Time Warner Share Repurchase Program.
(a) The
shares purchased under the Share Repurchase Program on the ex-dividend date (for
the Distribution) through the Distribution Record Date will participate in the
Distribution and the Distribution will be paid to the holder of record on the
Distribution Record Date (which generally would be the person/entity from whom
TWX purchased the shares).
(b) TWX
will not receive a Distribution on any shares purchased. Shares
received from trades settled on or before the Distribution Record Date will be
transferred by DWAC on the last day of each month (including the Distribution
Record Date) to the Company’s account at the Depository and will be treated as
treasury stock. Distributions on shares purchased on the ex-dividend
date through the Distribution Record Date and thus not settled by the
Distribution Record Date will be paid to the seller.
Conventions
Applicable to Holders of Unexchanged Stock.
The
Distribution will not be paid to the holder of any unexchanged shares of AOL LLC
or Historic TW Inc. with respect to the shares of TWX Common Stock that such
holder would be entitled to receive upon surrender of an AOL LLC or a Historic
TW Inc. common stock certificate (each an “Unexchanged Share”)
until surrender of such share certificates. The Depository will
coordinate with BNYMellon to establish a reserve of TWCable Capital Stock and to
issue such reserved shares upon surrender or escheatment of an Unexchanged
Share. BNYMellon will keep the Depository informed of any adjustments
made to the TWCable Capital Stock subsequent to the Distribution that may impact
the number shares of TWCable Capital Stock that each Eligible Holder would be
entitled to receive upon surrender of an Unexchanged Share. For
purposes of this Schedule 29, an Unexchanged Share shall also include any
unexchanged shares of capital stock, the holders of which are entitled to
receive either shares of AOL LLC or Historic TW Inc. common stock.
Conventions
Applicable to Time Warner Equity Plans.
(a) Stock Option
Exercises. If options are exercised on or before an
ex-dividend date (for the Distribution) in advance of the Distribution Record
Date or on the Distribution Record Date, the optionee will be paid the
Distribution on the shares of TWX Common Stock issued to the optionee as a
result of the exercise. This process will be followed whether the
option exercise is done as an exercise and hold (“cash exercise”), exercise and
same-day sale (“cashless exercise”) or exercise using already owned shares
(“stock swap”).
(b) Restricted Stock/Restricted Stock
Units/Performance Stock Units Vesting on the Distribution Record
Date. The Distribution will be paid on the shares of TWX
Common Stock that have been delivered on or before the Distribution Record Date
as a result of the vesting of restricted stock, restricted stock units or
performance stock units on or before the Distribution Record Date.
(c) Unvested Restricted Stock/Restricted
Stock Units on the Distribution Record Date. Restricted stock
and restricted stock units that have not vested and the underlying shares of
Time Warner delivered as of the Distribution Record Date will not participate in
the Distribution.
(d) Deferred Compensation Accounts Using
the Time Warner Crediting Valuation Method. Deferred
compensation accounts that use the Time Warner Crediting Valuation Method will
not participate in the Distribution.
(e) Performance Stock
Units. Performance stock units that have not vested and the
underlying shares of Time Warner delivered as of the Distribution Record Date
will not participate in the Distribution.
2
