SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Information to be included in statements filed pursuant to
Rule 13d-1(a) and amendments thereto filed pursuant to Rule 13d-2(a)
Amendment No. 3
Time Warner Telecom Inc.
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(Name of Issuer)
Class A Common Stock, Par Value $.01 Per Share
--------------------------------------------------------------------------------
(Title of Class of Securities)
887319101
--------------------------------------------------------------------------------
(CUSIP Number)
Paul T. Cappuccio, Esq.
Executive Vice President and General Counsel
Time Warner Inc.
One Time Warner Center
New York, NY 10019
(212) 484-8000
--------------------------------------------------------------------------------
(Name, Address and Telephone Number of Person Authorized
to Receive Notices and Communications)
September 26, 2006
--------------------------------------------------------------------------------
(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(e), 13d-1(f) or 13d-1(g), check the following
box.
(Continued on following page(s))
SCHEDULE 13D
CUSIP No. Class A Common Stock -- 887319101
----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Time Warner Inc.
I.R.S. No. 13-4099534
----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x] Joint Filing
----------------------------------------------------------------------------
3 SEC USE ONLY
----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [x]
----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
----------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY --------------------------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 0
PERSON WITH --------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0% (Class B Common Stock) or
0.0% (Class A Common Stock)
----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
----------------------------------------------------------------------------
2
CUSIP No. Class A Common Stock -- 887319101
----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Historic TW Inc.
I.R.S. No. 13-3527249
----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x] Joint Filing
----------------------------------------------------------------------------
3 SEC USE ONLY
----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [x]
----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
----------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY --------------------------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 0
PERSON WITH --------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0% (Class B Common Stock) or
0.0% (Class A Common Stock)
----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
----------------------------------------------------------------------------
3
CUSIP No. Class A Common Stock -- 887319101
----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Time Warner Companies, Inc.
I.R.S. No. 13-1388520
----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x] Joint Filing
----------------------------------------------------------------------------
3 SEC USE ONLY
----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [x]
----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
----------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY --------------------------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 0
PERSON WITH --------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0% (Class B Common Stock) or
0.0% (Class A Common Stock)
----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
----------------------------------------------------------------------------
4
CUSIP No. Class A Common Stock -- 887319101
----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
Warner Communications Inc.
I.R.S. No. 13-2696809
----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x] Joint Filing
----------------------------------------------------------------------------
3 SEC USE ONLY
----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [x]
----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
----------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY --------------------------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 0
PERSON WITH --------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0% (Class B Common Stock) or
0.0% (Class A Common Stock)
----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
----------------------------------------------------------------------------
5
CUSIP No. Class A Common Stock -- 887319101
----------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
S.S. or I.R.S. IDENTIFICATION NO. OF ABOVE PERSON
TW/TAE, Inc.
I.R.S. No. 13-3667918
----------------------------------------------------------------------------
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a)[ ]
(b)[x] Joint Filing
----------------------------------------------------------------------------
3 SEC USE ONLY
----------------------------------------------------------------------------
4 SOURCE OF FUNDS*
00
----------------------------------------------------------------------------
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED
PURSUANT TO ITEMS 2(d) OR 2(e) [x]
----------------------------------------------------------------------------
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
----------------------------------------------------------------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 0
BENEFICIALLY --------------------------------------------------
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING 0
PERSON WITH --------------------------------------------------
9 SOLE DISPOSITIVE POWER
0
--------------------------------------------------
10 SHARED DISPOSITIVE POWER
0
----------------------------------------------------------------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
0
----------------------------------------------------------------------------
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES
CERTAIN SHARES [ ]
----------------------------------------------------------------------------
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.0% (Class B Common Stock) or
0.0% (Class A Common Stock)
----------------------------------------------------------------------------
14 TYPE OF REPORTING PERSON*
CO
----------------------------------------------------------------------------
6
Time Warner Inc., a Delaware corporation ("Time Warner"), and its wholly
owned subsidiaries, Historic TW Inc., a Delaware corporation ("Historic TW"),
Time Warner Companies, Inc., a Delaware corporation ("TWC"), Warner
Communications Inc., a Delaware corporation ("WCI"), and TW/TAE, Inc., a
Delaware corporation ("TW/TAE") (collectively, the "Reporting Persons"), hereby
file this Amendment No. 3 to their Statement on Schedule 13D (the "Statement")
as required by Rule 13d-2(a) under the Securities Exchange Act of 1934, as
amended (the "Act"), relating to shares of Class B Common Stock, par value $.01
per share (the "Class B Common Stock"), of Time Warner Telecom Inc. ("Time
Warner Telecom"), of which Time Warner was the ultimate beneficial owner prior
to the conversion and sale of such shares as more fully described in the next
paragraph. Each share of Class B Common Stock of Time Warner Telecom is
immediately convertible on a share-for-share basis into shares of Class A Common
Stock, par value $.01 per share (the "Class A Common Stock"), of Time Warner
Telecom. Pursuant to Rule 13d-1(k) under the Act and as provided in the Joint
Filing Agreement filed as Exhibit 3 to the Statement, the Reporting Persons
agreed to file one statement with respect to their ownership of Class B Common
Stock of Time Warner Telecom. This Amendment No. 3 to the joint Schedule 13D of
the Reporting Persons is hereinafter referred to as the "Amendment."
This Amendment is being filed as a result of the conversion of all of the
Class B Common Stock held or beneficially owned by the Reporting Persons into
shares of Class A Common Stock (the "Conversion") and the consummation of the
sale of all such shares of Class A Common Stock (the "Sale of the Class A Common
Stock") pursuant to an underwriting agreement dated September 20, 2006 (the
"Underwriting Agreement") among Time Warner Telecom and TW/TAE, TWC, WCI,
Advance Telecom Holdings Corp. ("Advance") and Newhouse Telecom Holdings Corp.
("Newhouse") (collectively, the "Selling Stockholders") and the underwriters
listed in Schedule II thereto (the "Underwriters"). The Sale of the Class A
Common Stock was consummated on September 26, 2006 and was effected pursuant to
a Registration Statement on Form S-3 filed by Time Warner Telecom on March 17,
2006 (SEC File No. 333-132504-02) (the "Registration Statement"), as
supplemented by a prospectus supplement filed September 21, 2006 (the
"Prospectus Supplement"). In the Conversion, TW/TAE, TWC and WCI converted all
1,796,200, 3,367,609 and 28,159,106 shares of Class B Common Stock held by each
of them, respectively, into shares of Class A Common Stock that were sold to the
Underwriters. In addition, Advance and Newhouse together converted an aggregate
of 10,221,243 shares of Class B Common Stock held by them into shares of Class A
Common Stock that were sold to the Underwriters.
Upon the Sale of the Class A Common Stock, Time Warner Inc., Historic TW,
TW/TAE, TWC and WCI ceased to be Reporting Persons, except for the requirement
to file this Amendment pursuant to Rule 13d-2(a) under the Act.
This Amendment amends and supplements in its entirety the Statement
originally filed on January 23, 2001, Amendment No. 1 thereto filed on March 23,
2006 and Amendment No. 2 thereto filed on March 29, 2006.
Item 1. Security and Issuer.
The Statement relates to Class A Common Stock and Class B Common Stock of
Time Warner Telecom. The address of the principal executive offices of Time
Warner Telecom is 10475 Park Meadows Drive, Littleton, CO 80124.
7
Item 2. Identity and Background.
The Statement is filed on behalf of Time Warner, Historic TW, TWC, WCI and
TW/TAE.
Time Warner has its principal executive offices at One Time Warner Center,
New York, NY 10019. Time Warner is a leading media and entertainment company
formed in connection with the merger of AOL LLC (formerly America Online, Inc.,
"AOL") and Historic TW (formerly named Time Warner Inc.), which was consummated
on January 11, 2001. Time Warner classifies its businesses into the following
five reporting segments: AOL, consisting principally of interactive services;
Cable, consisting principally of interests in cable systems providing video,
high-speed data and Digital Phone services; Filmed Entertainment, consisting
principally of feature film, television and home video production and
distribution; Networks, consisting principally of cable television and broadcast
networks; and Publishing, consisting principally of magazine publishing.
Historic TW, a wholly owned subsidiary of Time Warner, has its principal
executive offices at One Time Warner Center, New York, New York 10019. Historic
TW is a holding company with the same business interests as Time Warner, except
it does not have an ownership interest in AOL's interactive services businesses.
TWC, an indirect wholly owned subsidiary of Time Warner, has its principal
executive offices at One Time Warner Center, New York, NY 10019. TWC is a
holding company with interests in publishing, cable systems, networks and filmed
entertainment.
WCI, an indirect wholly owned subsidiary of Time Warner, has its principal
executive offices at One Time Warner Center, New York, New York 10019. WCI is a
holding company with interests in publishing, cable systems, networks and filmed
entertainment.
TW/TAE, an indirect wholly owned subsidiary of Time Warner, has its
principal executive offices at One Time Warner Center, New York, NY 10019. Prior
to the Sale of the Class A Common Stock, TW/TAE's principal business activity
was holding shares of Class B Common Stock of Time Warner Telecom.
Each of FibrCOM Holdings, LP, a Delaware limited partnership ("Fibrcom"),
and Paragon Communications, a Colorado general partnership ("Paragon"), each a
subsidiary of Historic TW, were included as reporting persons on the original
Statement filed January 23, 2001. On March 31, 2003, in connection with the
restructuring of Time Warner Entertainment Company, L.P. ("TWE"), the 4,875,000
shares of Class B Common Stock then held by Fibrcom and the 773,322 shares of
Class B Common Stock then held by Paragon were transferred to WCI. As a result,
neither Fibrcom nor Paragon is included as a Reporting Person in this Amendment.
American Television and Communications Corporation ("ATC"), an indirect
wholly owned subsidiary of Time Warner, was included as a reporting person on
the original Statement filed January 23, 2001 and on Amendment No. 1 thereto
filed on March 23, 2006. Upon the closing on March 29, 2006 of the sale of
shares to the Underwriters pursuant to an underwriting agreement dated March 23,
2006 (the "March 2006 Underwriting Agreement"), ATC ceased to own any Class A
Common Stock or Class B Common Stock. As a result, ATC is not included as a
Reporting Person in this Amendment.
Upon the Sale of the Class A Common Stock, Time Warner Inc., Historic TW,
TW/TAE, TWC and WCI ceased to hold or beneficially own any shares of Class A
8
Common Stock or Class B Common Stock and ceased to be Reporting Persons, except
for the requirement to file this Amendment pursuant to Rule 13d-2(a) under the
Act.
Effective October 16, 2003, Time Warner changed its name from AOL Time
Warner Inc. to Time Warner Inc. and Historic TW changed its name from Time
Warner Inc. to Historic TW Inc.
The name, business address, citizenship, present principal occupation or
employment (and the name, principal business and address of any corporation or
other organization in which such employment is conducted) of each director and
executive officer of each of the Reporting Persons is set forth in Annexes A
through C, respectively, which Annexes are incorporated herein by reference.
Except as described herein, during the last five years, none of the
Reporting Persons, nor, to the best knowledge of the Reporting Persons, any
person named in Annexes A through C hereto has been (i) convicted in a criminal
proceeding (excluding traffic violations or similar misdemeanors) or (ii) a
party to a civil proceeding of a judicial or administrative body of competent
jurisdiction and as a result of such proceeding was or is 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.
Except as described herein, to the best knowledge of the Reporting Persons
as of the date hereof, (i) none of the Reporting Persons, nor any of the persons
listed on Annexes A to C beneficially owns any shares of Class A Common Stock
and (ii) there have been no transactions in the shares of Class A Common Stock
or Class B Common Stock effected during the past 60 days by the Reporting
Persons, nor to the best of the knowledge of the Reporting Persons, any of the
persons listed on Annexes A through C.
On March 21, 2005, pursuant to an approved settlement with the Securities
and Exchange Commission (the "SEC") in connection with its investigation of Time
Warner's accounting and disclosure practices, Time Warner agreed, without
admitting or denying any wrongdoing, to be enjoined from future violations of
certain provisions of the securities laws and to comply with a prior SEC
cease-and-desist order issued to AOL in May 2000. In connection with the SEC's
investigation, Wayne H. Pace (Time Warner's Chief Financial Officer) and James
W. Barge (Time Warner's Controller) also reached settlements approved by the SEC
pursuant to which they each agreed, without admitting or denying the SEC's
allegations, to the entry of an administrative order that they cease and desist
from any future violations of certain reporting provisions of the securities
laws; however, neither is subject to any suspension, bar or penalty.
Item 3. Source and Amount of Funds or Other Consideration.
In 1998, Time Warner Telecom LLC ("TWT LLC") was created as a result of a
reorganization of the business telephony operations of Historic TW, TWE and a
partnership between TWE, Advance and Newhouse ("TWE-A/N"). As part of that
reorganization, (1) the business telephony operations conducted by Historic TW,
TWE and TWE-A/N were each contributed to TWT LLC and (2) TWE's and TWE-A/N's
interests therein were distributed to their partners, certain subsidiaries of
Historic TW, AT&T Corporation, as successor to MediaOne of Colorado Inc.
("AT&T"), Advance and Newhouse.
9
On May 10, 1999, TWT LLC, Time Warner Telecom Inc., a wholly owned
subsidiary of TWT LLC ("TWT Inc."), and TW Telecom Merger Corp., a newly formed
Delaware corporation, entered into an Agreement and Plan of Merger. Pursuant to
the Agreement and Plan of Merger, TWT LLC and TWT Inc. merged into TW Telecom
Merger Corp., and TW Telecom Merger Corp., the surviving corporation, changed
its name to Time Warner Telecom Inc. (the "Reconstitution"). The holders of
Class B limited liability company interests of TWT LLC became holders of Class B
Common Stock of Time Warner Telecom and the holders of Class A limited liability
company interests of TWT LLC became holders of Class A Common Stock of Time
Warner Telecom. In the Reconstitution, the subsidiaries of Historic TW exchanged
Class B limited liability company interests equaling a 62% Class B participation
percentage in TWT LLC for an aggregate of 50,363,739 shares of Class B Common
Stock of Time Warner Telecom.
The description of the Agreement and Plan of Merger contained herein is
qualified in its entirety by reference to the Agreement, which is attached as
Exhibit 1 to the Statement filed January 23, 2001.
On January 11, 2001, pursuant to the Second Amended and Restated Agreement
and Plan of Merger, dated as of January 10, 2000, among Time Warner, AOL,
Historic TW, America Online Merger Sub Inc., a wholly owned subsidiary of Time
Warner ("AOL Merger Sub"), and Time Warner Merger Sub Inc., a wholly owned
subsidiary of Time Warner ("TW Merger Sub"), AOL Merger Sub was merged into AOL
and TW Merger Sub was merged into Historic TW (the "Mergers"). As a result, AOL
and Historic TW each became a wholly owned subsidiary of Time Warner. In
addition, upon consummation of the Mergers, (i) each outstanding share of AOL
Common Stock was automatically converted into one share of Time Warner Common
Stock, (ii) each outstanding share of Historic TW Common Stock was automatically
converted into 1.5 shares of Time Warner Common Stock and (iii) each outstanding
share of Historic TW Series LMCN-V Common Stock was automatically converted into
1.5 shares of Time Warner Series LMCN-V Common Stock having terms substantially
identical to those of the Historic TW Series LMCN-V common stock.
The foregoing transaction is referred to as the "Holding Company
Transaction". As a result of the Holding Company Transaction, Time Warner became
the ultimate beneficial owner of the Class B Common Stock of Time Warner Telecom
held by the Reporting Persons.
On March 31, 2003, in connection with the restructuring of TWE, the
4,875,000 shares of Class B Common Stock then held by Fibrcom and the 773,322
shares of Class B Common Stock then held by Paragon were transferred to WCI.
On March 29, 2006, in connection with the consummation of the sale of
shares of Class A Common Stock pursuant to the March 2006 Underwriting
Agreement, ATC converted all 15,469,415 shares of Class B Common Stock then held
by it into shares of Class A Common Stock that were sold to the underwriters
named in Schedule II to the March 2006 Underwriting Agreement and TW/TAE
converted 1,571,409 shares of Class B Common Stock then held by it into shares
of Class A Common Stock that were sold to such underwriters.
On September 26, 2006, in connection with the consummation of the Sale of
the Class A Common Stock pursuant to the Underwriting Agreement, WCI, TWC and
TW/TAE converted all shares of Class B Common Stock then held (28,159,106,
3,367,609 and 1,179,620, respectively) into shares of Class A Common Stock that
were sold to the underwriters named in Schedule II to the Underwriting
Agreement.
10
Item 4. Purpose of Transaction.
Sale of Reporting Persons' Remaining Investment in Time Warner Telecom
----------------------------------------------------------------------
Prior to the Conversion and the Sale of the Class A Common Stock, Time
Warner was the beneficial owner of 33,322,915 shares of Class B Common Stock.
Time Warner has engaged in the sale of non-strategic assets, and has indicated
to Time Warner Telecom that it did not consider its investment in Time Warner
Telecom to be strategic. The Sale of the Class A Common Stock resulted in the
sale of all of Time Warner's and the Selling Stockholders' investment in Time
Warner Telecom.
Termination of Class B Stockholders' Agreement
----------------------------------------------
The Reporting Persons were party to a Stockholders Agreement dated May 10,
1999 (the "Class B Stockholders' Agreement"), that was entered into when Time
Warner Telecom was reconstituted as a corporation from a limited liability
company in May 1999, as amended on July 19, 2000. Under the terms of the Class B
Stockholders' Agreement, immediately prior to the Conversion and Sale of the
Class A Common Stock, the Reporting Persons had the right to designate four
nominees for the Time Warner Telecom Board of Directors. Upon the Sale of the
Class A Common Stock, the Class B Stockholders' Agreement terminated, the
Reporting Persons ceased to have the ability to appoint directors to the board
of directors of Time Warner Telecom and the existing directors that were
appointed by the Reporting Persons resigned effective September 26, 2006.
Amendment of Time Warner Telecom's Restated Certificate of Incorporation
------------------------------------------------------------------------
Immediately prior to the Sale of the Class A Common Stock, the Selling
Stockholders consented to certain amendments to Time Warner Telecom's restated
certificate of incorporation to include provisions that Time Warner Telecom
believes are more appropriate for a public company without controlling
stockholders. In particular, the Selling Stockholders consented to amendments
that eliminate, on the trigger date, the ability of stockholders holding a
majority of Time Warner Telecom's voting power and the ability of any director
to call a special meeting of stockholders and instead to provide that, from and
after the trigger date, special meetings may be called only by Time Warner
Telecom's board of directors. The Selling Stockholders also consented to
amendments that provide that, after the trigger date, subject to the terms of
any preferred stock, stockholders may not act by written consent. The trigger
date is the date on which the outstanding shares of Class B Common Stock
represent less than 50% of Time Warner Telecom's voting power, which occurred on
the date the sale of shares to the Underwriters pursuant to the Underwriting
Agreement was consummated.
In addition, the Selling Stockholders consented to an amendment providing
that, after the date on which no holder of Class B Common Stock is entitled to
designate any director nominees under the terms of the Class B Stockholders'
Agreement, the number of directors comprising Time Warner Telecom's board of
directors will be as provided in Time Warner Telecom's bylaws. Upon consummation
of the Sale of the Class A Common Stock, no holders of Class B Common Stock are
entitled to designate any director nominees.
The Selling Stockholders also consented to amend Time Warner Telecom's
restated certificate of incorporation to provide that Time Warner Telecom will
be governed by Section 203 of the Delaware General Corporation Law following
such time as the outstanding shares of Class B Common Stock represent less than
10% of Time Warner Telecom's voting power, which occurred on the date the sale
of shares
11
to the Underwriters pursuant to the Underwriting Agreement was consummated.
Section 203 prohibits a publicly held Delaware corporation from engaging in a
"business combination" with an "interested stockholder," as those terms are
defined in that section, for a period of three years after the date of the
transaction in which the stockholder became an interested stockholder.
Finally, the Selling Stockholders consented to authorize Time Warner
Telecom to amend its restated certificate of incorporation to change its name to
"TW Telecom Inc." prior to July 13, 2007, unless Time Warner Telecom has
otherwise changed its corporate name and amended its restated certificate of
incorporation to delete "Time Warner" from its name prior to such date.
Other than as reported in this Item 4, none of the Reporting Persons has
any current plans or proposals that relate to or would result in (i) the
acquisition or disposition of securities of Time Warner Telecom; (ii) initiating
an extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving Time Warner Telecom or any of its subsidiaries; (iii) a
sale or transfer of a material amount of assets of Time Warner Telecom or any of
its subsidiaries; (iv) any change in the present board of directors or
management of Time Warner Telecom 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 Time
Warner Telecom; (vi) initiating any other material change in Time Warner
Telecom's business or corporate structure; (vii) changes in Time Warner
Telecom's charter, by-laws or instruments corresponding thereto or other actions
which may impede the acquisition or control of Time Warner Telecom by any
person; (viii) causing a class of securities of Time Warner Telecom to be
delisted from a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national securities
association; (ix) causing a class of equity securities of Time Warner Telecom to
become eligible for termination of registration pursuant to Section 12(g)(4) of
the Securities Exchange Act of 1934, as amended; or (x) any action similar to
any of those enumerated in clauses (i) through (ix) of this sentence.
Item 5. Interest in Securities of the Issuer.
Immediately prior to the Sale of the Class A Common Stock, TW/TAE, TWC and
WCI converted all 1,796,200, 3,367,609 and 28,159,106 shares of Class B Common
Stock held by each of them, respectively. As a result of the Sale of the Class A
Common Stock to the Underwriters pursuant to the Underwriting Agreement, none of
the Reporting Persons nor any director or executive officer of Time Warner,
Historic TW, TWC, WCI or TW/TAE owns shares of common stock of Time Warner
Telecom. The Sale of the Class A Common Stock was effected pursuant to the
Registration Statement, as supplemented by the Prospectus Supplement.
12
Item 6. Contracts, Arrangements, Understandings or Relationships with
Respect to Securities of the Issuer.
The Reporting Persons are not party to any contracts, arrangements,
understandings or relationships with respect to shares of Time Warner Telecom
Class A Common Stock or Class B Common Stock, except for certain provisions of
the Underwriting Agreement that continue for the 90 days following the
consummation of the Sale of the Class A Common Stock.
Item 7. Material to Be Filed as Exhibits.
Exhibit 1: Agreement and Plan of Merger dated as of May
10, 1999 (incorporated by reference to Exhibit 2.1
to Time Warner Telecom's Quarterly Report on Form
10-Q for the quarter ended June 30, 1998 (File No.
0-30218)).
Exhibit 2: Stockholders Agreement dated as of May 10, 1999
(incorporated by reference to Exhibit 4.1 to Time
Warner Telecom Registration Statement on Form S-1
(Registration No. 333-49439)).
Exhibit 3: Amendment, dated July 19, 2000, to the
Stockholders Agreement (incorporated by reference
to Exhibit 4.2 to Time Warner Telecom's Annual
Report on Form 10-K for the year ended December
31, 2000).
Exhibit 4: Joint filing Agreement among Time Warner,
Historic TW, TWC, WCI, ATC, TW/TAE, Paragon and
Fibrcom (incorporated by reference to the Schedule
13D filed by the Reporting Persons on January 23,
2001).
13
Signature
After reasonable inquiry and to the best of the undersigned's knowledge and
belief, the undersigned certify that the information set forth in this Statement
is true, complete and correct.
Date: September 29, 2006
TIME WARNER INC.
By /s/ Pascal Desroches
-----------------------------
Name: Pascal Desroches
Title: Vice President and
Deputy Controller
HISTORIC TW INC.
By /s/ Pascal Desroches
-----------------------------
Name: Pascal Desroches
Title: Vice President and
Deputy Controller
TIME WARNER COMPANIES, INC.
By /s/ Pascal Desroches
-----------------------------
Name: Pascal Desroches
Title: Vice President and
Deputy Controller
WARNER COMMUNICATIONS INC.
By /s/ Pascal Desroches
-----------------------------
Name: Pascal Desroches
Title: Vice President and
Deputy Controller
TW/TAE, INC
By /s/ Brenda C. Karickhoff
-----------------------------
Name: Brenda C. Karickhoff
Title: Senior Vice President
and Secretary
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ANNEX A
The following is a list of the directors and executive officers of Time
Warner Inc. ("Time Warner"), setting forth the business address and present
principal occupation or employment (and the name, principal business and address
of any corporation or organization in which such employment is conducted) of
each such person. Unless otherwise noted, to the best knowledge of Time Warner,
each person is a citizen of the United States of America.
Directors
Principal Occupation or
Name Office Employment and Address
---- ------ -----------------------
James L. Barksdale Director Chairman and President,
Barksdale Management Corporation
(private investment management company)
c/o Time Warner*
Stephen F. Bollenbach Director Co-Chairman and Chief Executive Officer,
Hilton Hotels Corporation
(hotel ownership and management)
c/o Hilton Hotels Corporation
9396 Civic Center Drive
Beverly Hills, CA 90210
Frank J. Caufield Director Co-Founder and General Partner,
Kleiner Perkins Caufield & Byers
(a venture capital partnership)
2750 Sand Hill Road
Menlo Park, CA 94025
Robert C. Clark Director Distinguished Service Professor,
Harvard University
1575 Massachusetts Avenue
Cambridge, MA 02138
Mathias Dopfner** Director Chairman, Chief Executive Officer and
Head of the Newspaper Division,
Axel Sringer AG
Axel-Springer-Strasse 65
10888 Berlin, Germany
15
Principal Occupation or
Name Office Employment and Address
---- ------ -----------------------
Jessica P. Einhorn Director Dean,
Paul H. Nitze School of Advanced
International Studies at
The Johns Hopkins University
The Nitze Building
1740 Massachusetts Ave, NW
Washington, D.C. 20036
*The business address of Time Warner, Historic TW, TWC, WCI and TW/TAE is One
Time Warner Center, New York, NY 10019.
**Citizen of Germany.
16
Principal Occupation or
Name Office Employment and Address
---- ------ ----------------------
Reuben Mark Director Chairman and Chief Executive
Officer,
Colgate-Palmolive Company
(consumer products)
300 Park Avenue
New York, NY 10022
Michael A. Miles Director Special Limited Partner,
Forstmann Little & Company,
(private investment firm)
1350 Lake Road
Lake Forest, IL 60045
Kenneth J. Novack Director Senior Counsel,
Mintz, Levin, Cohn, Ferris,
Glovsky and Popeo, PC
(law firm)
One Financial Center
Boston, MA 02111
Richard D. Parsons Chairman of the Board and Chairman of the Board and
Chief Executive Officer Chief Executive Officer of
Time Warner*
Francis T. Vincent, Jr. Director Chairman,
Vincent Enterprises
(private investment firm)
290 Harbor Drive
Stamford, CT 06902
Deborah C. Wright Director Chairman of the Board,
President and Chief Executive
Officer,
Carver Bancorp, Inc. and
Carver Federal Savings Bank
(banking)
75 West 125 Street
New York, NY 10027-4512
*The business address of Time Warner, Historic TW, TWC, WCI and TW/TAE is One
Time Warner Center, New York, NY 10019.
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Executive Officers Who Are Not Directors
----------------------------------------
Principal Occupation and
Name Office Employment Address
---- ------ ------------------
Jeffrey L. Bewkes President and Chief President and Chief
Operating Officer Operating Officer,
Time Warner*
Paul T. Cappuccio Executive Vice President and Executive Vice President
General Counsel and General Counsel,
Time Warner*
Wayne H. Pace Executive Vice President and Executive Vice President
Chief Financial Officer and Chief Financial
Officer,
Time Warner*
Edward A. Adler Executive Vice President, Executive Vice President,
Corporate Communications Corporate Communications,
Time Warner*
Patricia Fili-Krushel Executive Vice President, Executive Vice President,
Administration Administration,
Time Warner*
Carol Melton Executive Vice President, Executive Vice President,
Global Public Policy Global Public Policy,
Time Warner*
Olaf Olafsson** Executive Vice President Executive Vice President,
Time Warner*
*The business address of Time Warner, Historic TW, TWC, WCI and TW/TAE is One
Time Warner Center, New York, NY 10019.
** Citizen of Iceland
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ANNEX B
The following is a list of the directors and executive officers of Historic TW,
TWC and WCI setting forth the business address and present principal occupation
or employment (and the name, principal business and address of any corporation
or organization in which such employment is conducted) of each such person.
Unless otherwise noted, to the best knowledge of Historic TW, TWC and WCI, each
person is a citizen of the United States of America.
Principal Occupation or
Name Office Employment and Address
---- ------ ----------------------
Raymond G. Murphy Director, Senior Vice Senior Vice President
President and Treasurer and Treasurer,
Time Warner*
Paul T. Cappuccio Director, Executive Executive Vice President
Vice President and General Counsel,
Time Warner*
James W. Barge Director, Senior Vice Senior Vice President
President and Controller and Controller,
Time Warner*
Richard D. Parsons Chairman and Chief Chairman of the Board
Executive Officer and Chief Executive
Officer,
Time Warner*
Jeffrey L. Bewkes President and Chief President and Chief
Operating Officer Operating Officer,
Time Warner*
Wayne H. Pace Executive Vice President Executive Vice President
and Chief Financial Officer and Chief Financial
Officer,
Time Warner*
Edward A. Adler Executive Vice President Executive Vice President,
Corporate Communications,
Time Warner*
Patricia Fili-Krushel Executive Vice President Executive Vice President,
Administration,
Time Warner*
Carol Melton Executive Vice President Executive Vice President,
Global Public Policy,
Time Warner*
Olaf Olafsson** Executive Vice President Executive Vice President,
Time Warner*
*The business address of Time Warner, Historic TW, TWC, WCI and TW/TAE is One
Time Warner Center, New York, NY 10019.
** Citizen of Iceland
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ANNEX C
The following is a list of the directors and executive officers of TW/TAE,
setting forth the business address and present principal occupation or
employment (and the name, principal business and address of any corporation or
organization in which such employment is conducted) of each such person. To the
best knowledge of TW/TAE, each person is a citizen of the United States of
America.
Principal Occupation or
Name Office Employment and Address
---- ------ ----------------------
Raymond G. Murphy Director, Senior Vice Senior Vice President
President and Treasurer and Treasurer,
Time Warner*
Paul T. Cappuccio Director, Executive Executive Vice President
Vice President and General Counsel,
Time Warner*
James W. Barge Director Senior Vice President and
Controller,
Time Warner*
Richard D. Parsons President Chairman of the Board and
Chief Executive Officer,
Time Warner*
*The business address of Time Warner, Historic TW, TWC, WCI and TW/TAE is One
Time Warner Center, New York, NY 10019.
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