þ | QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
o | TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934 |
Delaware | 84-1496755 | |
(State or other jurisdiction of | (I.R.S. Employer | |
incorporation or organization) | Identification No.) |
Large accelerated filer
þ
|
Accelerated filer o | |
Non-accelerated filer
o
(Do not check if a smaller reporting company)
|
Smaller reporting company o |
Shares Outstanding | ||||
Description of Class | as of April 24, 2009 | |||
Common Stock $.01 par value
|
352,334,469 |
Page | ||||||||
PART I. FINANCIAL INFORMATION
|
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1 | ||||||||
16 | ||||||||
17 | ||||||||
18 | ||||||||
19 | ||||||||
20 | ||||||||
21 | ||||||||
34 | ||||||||
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||||||||
41 | ||||||||
41 | ||||||||
41 | ||||||||
41 | ||||||||
EX-4.1 | ||||||||
EX-4.2 | ||||||||
EX-10.1 | ||||||||
EX-10.4 | ||||||||
EX-10.5 | ||||||||
EX-12 | ||||||||
EX-31.1 | ||||||||
EX-31.2 | ||||||||
EX-32 |
| Overview. This section provides a general description of TWCs business, as well as recent developments the Company believes are important in understanding the results of operations and financial condition or in understanding anticipated future trends. | ||
| Financial statement presentation. This section provides a summary of how the Companys operations are presented in the accompanying consolidated financial statements. | ||
| Results of operations. This section provides an analysis of the Companys results of operations for the three months ended March 31, 2009. | ||
| Financial condition and liquidity. This section provides an analysis of the Companys financial condition as of March 31, 2009 and cash flows for the three months ended March 31, 2009. | ||
| Caution concerning forward-looking statements . This section provides a description of the use of forward-looking information appearing in this report, including in MD&A and the consolidated financial statements. Such information is based on managements current expectations about future events, which are inherently susceptible to uncertainty and changes in circumstances. Refer to the Companys Annual Report on Form 10-K for the year ended December 31, 2008 (the 2008 Form 10-K) for a discussion of the risk factors applicable to the Company. |
1
2
3
4
5
Three Months Ended March 31, | ||||||||||||
2009 | 2008 | % Change | ||||||||||
Subscription:
|
||||||||||||
Video
|
$ | 2,667 | $ | 2,603 | 2 | % | ||||||
High-speed data
|
1,101 | 994 | 11 | % | ||||||||
Voice
|
451 | 366 | 23 | % | ||||||||
|
||||||||||||
Total Subscription
|
4,219 | 3,963 | 6 | % | ||||||||
Advertising
|
145 | 197 | (26 | %) | ||||||||
|
||||||||||||
Total
|
$ | 4,364 | $ | 4,160 | 5 | % | ||||||
|
6
March 31, | ||||||||||||
2009 | 2008 | % Change | ||||||||||
Video
(a)
|
13,105 | 13,306 | (2 | %) | ||||||||
Residential high-speed data
(b)(c)
|
8,669 | 7,924 | 9 | % | ||||||||
Commercial high-speed data
(b)(c)
|
283 | 280 | 1 | % | ||||||||
Residential Digital Phone
(c)(d)
|
3,913 | 3,170 | 23 | % | ||||||||
Commercial Digital Phone
(c)(d)
|
38 | 10 | 280 | % | ||||||||
Primary service units
(e)
|
26,008 | 24,690 | 5 | % | ||||||||
Digital video
(f)
|
8,748 | 8,283 | 6 | % | ||||||||
Revenue generating units
(g)
|
34,756 | 32,973 | 5 | % | ||||||||
Customer relationships
(h)
|
14,663 | 14,722 | | |||||||||
Double play
(i)
|
4,854 | 4,748 | 2 | % | ||||||||
Triple play
(j)
|
3,245 | 2,610 | 24 | % |
(a) | Video subscriber numbers reflect billable subscribers who receive at least basic video service. | |
(b) | High-speed data subscriber numbers reflect billable subscribers who receive TWCs Road Runner high-speed data service or any of the other high-speed data services offered by TWC. | |
(c) | The determination of whether a high-speed data or Digital Phone subscriber is categorized as commercial or residential is generally based upon the type of service provided to that subscriber. For example, if TWC provides a commercial service, the subscriber is classified as commercial. | |
(d) | Digital Phone subscriber numbers reflect billable subscribers who receive an IP-based telephony service. | |
(e) | Primary service unit numbers represent the total of all video, high-speed data and voice subscribers. | |
(f) | Digital video subscriber numbers reflect billable video subscribers who receive any level of video service at their dwelling or commercial establishment via digital transmissions. | |
(g) | Revenue generating unit numbers represent the total of all basic video, digital video, high-speed data and voice subscribers. | |
(h) | Customer relationships represent the number of subscribers who receive at least one level of service, encompassing video, high-speed data and voice services, without regard to the number of services purchased. For example, a subscriber who purchases only high-speed data service and no video service will count as one customer relationship, and a subscriber who purchases both video and high-speed data services will also count as only one customer relationship. | |
(i) | Double play subscriber numbers reflect customers who subscribe to two of the Companys primary services. | |
(j) | Triple play subscriber numbers reflect customers who subscribe to all three of the Companys primary services. |
Three Months Ended March 31, | ||||||||||||
2009 | 2008 | % Change | ||||||||||
Basic video services
|
$ | 1,575 | $ | 1,551 | 2 | % | ||||||
Digital video services
|
643 | 632 | 2 | % | ||||||||
Equipment rental and installation charges
|
295 | 269 | 10 | % | ||||||||
Franchise fees
|
118 | 112 | 5 | % | ||||||||
Other
|
36 | 39 | (8 | %) | ||||||||
|
||||||||||||
Total
|
$ | 2,667 | $ | 2,603 | 2 | % | ||||||
|
7
Three Months Ended March 31, | ||||||||||||
2009 | 2008 | % Change | ||||||||||
Video programming
|
$ | 1,003 | $ | 929 | 8 | % | ||||||
Employee
|
619 | 584 | 6 | % | ||||||||
High-speed data
|
33 | 40 | (18 | %) | ||||||||
Voice
|
152 | 128 | 19 | % | ||||||||
Franchise fees
|
118 | 112 | 5 | % | ||||||||
Other direct operating costs
|
202 | 214 | (6 | %) | ||||||||
|
||||||||||||
Total
|
$ | 2,127 | $ | 2,007 | 6 | % | ||||||
|
Three Months Ended March 31, | ||||||||||||
2009 | 2008 | % Change | ||||||||||
Employee
|
$ | 308 | $ | 308 | | |||||||
Marketing
|
140 | 158 | (11 | %) | ||||||||
Other
|
282 | 283 | | |||||||||
|
||||||||||||
Total
|
$ | 730 | $ | 749 | (3 | %) | ||||||
|
8
Three Months Ended March 31, | ||||||||||||
2009 | 2008 | % Change | ||||||||||
(recast) | ||||||||||||
Net income attributable to TWC
|
$ | 164 | $ | 242 | (32 | %) | ||||||
Plus: Net income attributable to noncontrolling interests
|
20 | 24 | (17 | %) | ||||||||
|
||||||||||||
Net income
|
184 | 266 | (31 | %) | ||||||||
Income tax provision
|
191 | 182 | 5 | % | ||||||||
|
||||||||||||
Income before income taxes
|
375 | 448 | (16 | %) | ||||||||
Interest expense, net
|
290 | 199 | 46 | % | ||||||||
Other expense (income), net
|
51 | (11 | ) | NM | ||||||||
|
||||||||||||
Operating Income
|
716 | 636 | 13 | % | ||||||||
Depreciation
|
691 | 701 | (1 | %) | ||||||||
Amortization
|
57 | 65 | (12 | %) | ||||||||
|
||||||||||||
Operating Income before Depreciation and Amortization
|
$ | 1,464 | $ | 1,402 | 4 | % | ||||||
|
NMNot meaningful.
|
9
Three Months Ended March 31, | ||||||||
2009 | 2008 | |||||||
Direct transaction costs related to the Separation Transactions
(a)
|
$ | 27 | $ | 2 | ||||
Loss (income) from equity investments, net
|
13 | (5 | ) | |||||
Impairment of investment in The Reserve Fund
(b)
|
10 | | ||||||
Investment losses
(gains)
(c)
|
| (9 | ) | |||||
Other
|
1 | 1 | ||||||
|
||||||||
Other expense (income), net
|
$ | 51 | $ | (11 | ) | |||
|
(a) |
Amounts primarily consist of legal and professional fees.
|
|
(b) |
See Financial Condition and LiquidityCurrent Financial Condition for additional
discussion about The Reserve Fund.
|
|
(c) |
2008 amount consists of a $9 million gain recorded on the sale of a cost-method
investment.
|
10
Balance as of December 31, 2008
(a)
|
$ | 12,279 | ||
Payment of the Special Dividend
|
10,856 | |||
Cash provided by operating activities
|
(1,141 | ) | ||
Capital expenditures
|
769 | |||
All other, net
|
(1 | ) | ||
|
||||
Balance as of March 31, 2009
(a)
|
$ | 22,762 | ||
|
(a) |
Amounts include unamortized fair value adjustments of $111 million and $114 million
as of March 31, 2009 and December 31, 2008, respectively, which include the fair value
adjustment recognized as a result of the merger of America Online, Inc. (now known as AOL LLC)
and Time Warner Inc. (now known as Historic TW Inc.).
|
11
Three Months Ended March 31, | ||||||||
2009 | 2008 | |||||||
Operating Income before Depreciation and Amortization
|
$ | 1,464 | $ | 1,402 | ||||
Net interest payments
(a)
|
(360 | ) | (212 | ) | ||||
Pension plan contributions
|
(41 | ) | (50 | ) | ||||
Noncash equity-based compensation
|
35 | 34 | ||||||
Restructuring accruals (payments), net
|
24 | (2 | ) | |||||
Net income taxes refunded
(b)
|
22 | 1 | ||||||
All other, net, including working capital changes
|
(3 | ) | 13 | |||||
|
||||||||
Cash provided by operating activities
|
$ | 1,141 | $ | 1,186 | ||||
|
(a) |
Amounts include interest income received of $4 million and $3 million for the three
months ended March 31, 2009 and 2008, respectively.
|
|
(b) |
Amounts include income taxes paid of $2 million and $1 million for the three months
ended March 31, 2009 and 2008, respectively.
|
Three Months Ended March 31, | ||||||||
2009 | 2008 | |||||||
Investments and acquisitions, net of cash acquired and distributions received:
|
||||||||
The Reserve Fund
|
$ | 32 | $ | | ||||
SpectrumCo
(a)
|
(22 | ) | (2 | ) | ||||
All other
|
(1 | ) | (3 | ) | ||||
Capital expenditures
|
(769 | ) | (846 | ) | ||||
Other investing activities
|
1 | 10 | ||||||
|
||||||||
Cash used by investing activities
|
$ | (759 | ) | $ | (841 | ) | ||
|
(a) |
2009 amount represents a contribution of $22 million to SpectrumCo LLC
(SpectrumCo) to fund the Companys share of a $70 million payment to Cox Communications,
Inc. (Cox) to redeem a 10.9% interest in SpectrumCo held by an affiliate of Cox. Cox also
received advanced wireless spectrum (AWS) licenses, principally covering areas in which Cox
has cable services. Following the closing of the Cox transaction, SpectrumCos licenses cover
20 MHz of AWS in over 80% of the continental United States and Hawaii.
|
12
Three Months Ended March 31, | ||||||||
2009 | 2008 | |||||||
Customer premise equipment
(a)
|
$ | 360 | $ | 446 | ||||
Scalable infrastructure
(b)
|
147 | 104 | ||||||
Line extensions
(c)
|
67 | 87 | ||||||
Upgrades/rebuilds
(d)
|
41 | 63 | ||||||
Support capital
(e)
|
154 | 146 | ||||||
|
||||||||
Total capital expenditures
|
$ | 769 | $ | 846 | ||||
|
(a) |
Amounts represent costs incurred in the purchase and installation of equipment that
resides at a customers home or business for the purpose of receiving/sending video,
high-speed data and/or voice signals. Such equipment includes digital (including
high-definition) set-top boxes, remote controls, high-speed data modems, telephone modems and
the costs of installing such new equipment. Customer premise equipment also includes materials
and labor incurred to install the drop cable that connects a customers dwelling or business
to the closest point of the main distribution network.
|
|
(b) |
Amounts represent costs incurred in the purchase and installation of equipment that
controls signal reception, processing and transmission throughout TWCs distribution network,
as well as controls and communicates with the equipment residing at a customers home or
business. Also included in scalable infrastructure is certain equipment necessary for content
aggregation and distribution (video-on-demand equipment) and equipment necessary to provide
certain video, high-speed data and Digital Phone service features (voicemail, e-mail, etc.).
|
|
(c) |
Amounts represent costs incurred to extend TWCs distribution network into a
geographic area previously not served. These costs typically include network design, the
purchase and installation of fiber optic and coaxial cable and certain electronic equipment.
|
|
(d) |
Amounts primarily represent costs incurred to upgrade or replace certain existing
components or an entire geographic area of TWCs distribution network. These costs typically
include network design, the purchase and installation of fiber optic and coaxial cable and
certain electronic equipment.
|
|
(e) |
Amounts represent all other capital purchases required to run day-to-day operations.
These costs typically include vehicles, land and buildings, computer hardware/software, office
equipment, furniture and fixtures, tools and test equipment. Amounts include capitalized
software costs of $32 million and $48 million for the three months ended March 31, 2009 and
2008, respectively.
|
Three Months Ended March 31, | ||||||||
2009 | 2008 | |||||||
Borrowings (repayments), net
(a)
|
$ | | $ | 166 | ||||
Borrowings
|
8,614 | 141 | ||||||
Repayments
|
(3,182 | ) | (655 | ) | ||||
Debt issuance costs
|
(11 | ) | | |||||
Payment of Special Dividend
|
(10,856 | ) | | |||||
Other financing activities
|
| (3 | ) | |||||
|
||||||||
Cash used by financing activities
|
$ | (5,435 | ) | $ | (351 | ) | ||
|
(a) |
Borrowings (repayments), net, reflects borrowings under the Companys commercial
paper program with original maturities of three months or less, net of repayments of such
borrowings.
|
13
Three Months Ended March 31, | ||||||||
2009 | 2008 | |||||||
Cash provided by operating activities
|
$ | 1,141 | $ | 1,186 | ||||
Add: Excess tax benefit from exercise of stock options
|
| | ||||||
Less:
|
||||||||
Capital expenditures
|
(769 | ) | (846 | ) | ||||
Cash paid for other intangible assets
|
(5 | ) | (8 | ) | ||||
Partnership tax distributions, stock option distributions and principal payments on capital leases
|
| (1 | ) | |||||
|
||||||||
Free Cash Flow
|
$ | 367 | $ | 331 | ||||
|
Interest Rate at | Outstanding Balance as of | |||||||||||||||
March 31, | March 31, | December 31, | ||||||||||||||
2009 | Maturity | 2009 | 2008 | |||||||||||||
(in millions) | ||||||||||||||||
Credit facilities
(a)
|
1.003 | % (b) | 2011 | $ | 5,495 | $ | 3,045 | |||||||||
TWE notes and debentures
(c)
|
7.818 | % (b) | 2012-2033 | 2,711 | 2,714 | |||||||||||
TWC notes and debentures
|
7.042 | % (b) | 2012-2038 | 14,940 | 11,956 | |||||||||||
Capital leases and other
(d)
|
12 | 13 | ||||||||||||||
|
||||||||||||||||
Total debt
|
23,158 | 17,728 | ||||||||||||||
TW NY Cable Preferred Membership Units
|
8.210 | % | 2013 | 300 | 300 | |||||||||||
|
||||||||||||||||
Total debt and mandatorily redeemable preferred equity
|
$ | 23,458 | $ | 18,028 | ||||||||||||
|
(a) |
TWCs unused committed capacity was $3.688 billion as of March 31, 2009, reflecting
$396 million in cash and equivalents and $3.292 billion of available borrowing capacity under
the Revolving Credit Facility (which reflects a reduction of $133 million for outstanding
letters of credit backed by the Revolving Credit Facility).
|
|
(b) |
Rate represents an effective weighted-average interest rate.
|
|
(c) |
Outstanding balance amount as of March 31, 2009 and December 31, 2008 includes an
unamortized fair value adjustment of $111 million and $114 million, respectively.
|
|
(d) |
Amount includes $1 million of debt due within one year as of December 31, 2008 (none
as of March 31, 2009), which primarily relates to capital lease obligations.
|
14
|
a longer than anticipated continuation of the current economic slowdown or further
deterioration in the economy;
|
||
|
any reduction in the Companys ability to access the capital markets for debt securities
or bank financings, including as a result of current liquidity issues affecting the capital
markets;
|
||
|
the impact of terrorist acts and hostilities;
|
||
|
changes in the Companys plans, strategies and intentions;
|
||
|
the impacts of significant acquisitions, dispositions and other similar transactions; and
|
||
|
the failure to meet earnings expectations.
|
15
16
17
18
19
20
21
22
23
24
25
26
27
28
29
30
31
32
33
34
35
36
37
38
39
40
CONSOLIDATED BALANCE SHEET
(Unaudited)
Table of Contents
CONSOLIDATED STATEMENT OF OPERATIONS
(Unaudited)
Three Months Ended
March 31,
2009
2008
(recast)
(in millions,
except per share data)
$
2,667
$
2,603
1,101
994
451
366
4,219
3,963
145
197
4,364
4,160
2,127
2,007
730
749
691
701
57
65
43
2
3,648
3,524
716
636
(290
)
(199
)
(51
)
11
375
448
(191
)
(182
)
184
266
(20
)
(24
)
$
164
$
242
$
0.48
$
0.74
$
0.48
$
0.74
339.0
325.6
339.6
325.8
$
30.81
$
(a)
Three Months Ended
March 31,
2009
2008
(in millions)
$
5
$
3
(228
)
(270
)
(3
)
(4
)
(b)
Table of Contents
CONSOLIDATED STATEMENT OF CASH FLOWS
(Unaudited)
(a)
(b)
Table of Contents
CONSOLIDATED STATEMENT OF EQUITY
(Unaudited)
Three Months Ended March 31, 2009
Three Months Ended March 31, 2008
TWC
TWC
Shareholders
Noncontrolling
Total
Shareholders
Noncontrolling
Total
Equity
Interests
Equity
Equity
Interests
Equity
(in millions)
(recast, in millions)
$
17,164
$
1,110
$
18,274
$
24,706
$
1,724
$
26,430
164
20
184
242
24
266
10
10
3
3
174
20
194
245
24
269
33
2
35
32
2
34
1,128
(1,128
)
(10,856
)
(10,856
)
(46
)
(46
)
(1
)
(1
)
(16
)
(16
)
15
1
16
$
7,581
$
4
$
7,585
$
24,997
$
1,751
$
26,748
(a)
(b)
Table of Contents
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Three Months Ended
March 31,
2009
2008
(recast)
$
164
$
242
339.0
325.6
0.6
0.2
339.6
325.8
$
0.48
$
0.74
$
0.48
$
0.74
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Interest Rate at
Outstanding Balance as of
March 31,
March 31,
December 31,
2009
Maturity
2009
2008
(in millions)
1.003
%
(b)
2011
$
5,495
$
3,045
7.818
%
(b)
2012-2033
2,711
2,714
7.042
%
(b)
2012-2038
14,940
11,956
12
13
23,158
17,728
8.210
%
2013
300
300
$
23,458
$
18,028
(a)
(b)
(c)
(d)
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Three Months Ended
March 31,
2009
2008
33.5
%
30.0
%
6.52 years
6.52 years
2.7
%
3.2
%
0.0
%
0.0
%
Weighted-
Weighted-
Average
Average
Remaining
Aggregate
Number
Exercise
Contractual
Intrinsic
of Options
(a)
Price
(a)
Life
Value
(in thousands)
(in years)
(in thousands)
5,702
$
39.88
4,850
23.48
(115
)
38.93
10,437
32.28
9.16
$
6,389
1,403
40.33
8.28
(a)
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Weighted-
Average
Number of
Grant Date
Units
(a)
Fair Value
(a)
(in thousands)
1,564
$
93.75
2,495
39.05
(7
)
111.25
(38
)
87.90
4,014
59.80
(a)
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Three Months Ended
March 31,
2009
2008
$
14
$
13
19
17
$
33
$
30
$
13
$
12
$
2
$
3
1
$
2
$
4
$
1
$
2
(a)
Three Months Ended
March 31,
2009
2008
$
24
$
25
21
20
(23
)
(25
)
16
4
$
38
$
24
$
41
$
50
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Employee
Other
Terminations
Exit Costs
Total
$
42
$
1
$
43
(16
)
(16
)
$
26
$
1
$
27
Employee
Other
Terminations
Exit Costs
Total
$
13
$
3
$
16
14
1
15
(20
)
(2
)
(22
)
7
2
9
(3
)
(3
)
$
4
$
2
$
6
(a)
(b)
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Three Months Ended
March 31,
2009
2008
$
(364
)
$
(215
)
4
3
$
(360
)
$
(212
)
$
(2
)
$
(1
)
24
2
$
22
$
1
Table of Contents
NOTES TO CONSOLIDATED FINANCIAL STATEMENTS(Continued)
(Unaudited)
Three Months Ended
March 31,
2009
2008
$
3
$
3
(293
)
(202
)
$
(290
)
$
(199
)
March 31,
December 31,
2009
2008
$
284
$
368
243
297
153
171
142
139
122
128
89
88
284
241
$
1,317
$
1,432
Table of Contents
SUPPLEMENTARY INFORMATION
CONDENSED CONSOLIDATING FINANCIAL STATEMENTS
Table of Contents
SUPPLEMENTARY INFORMATION
CONDENSED CONSOLIDATING FINANCIAL STATEMENTS(Continued)
March 31, 2009
(Unaudited)
Table of Contents
SUPPLEMENTARY INFORMATION
CONDENSED CONSOLIDATING FINANCIAL STATEMENTS(Continued)
December 31, 2008
(a)
Table of Contents
SUPPLEMENTARY INFORMATION
CONDENSED CONSOLIDATING FINANCIAL STATEMENTS(Continued)
Three Months Ended March 31, 2009
(Unaudited)
Non-
Parent
Guarantor
Guarantor
TWC
Company
Subsidiaries
Subsidiaries
Eliminations
Consolidated
(in millions)
$
$
898
$
3,513
$
(47
)
$
4,364
504
1,670
(47
)
2,127
119
611
730
176
515
691
57
57
21
22
43
820
2,875
(47
)
3,648
78
638
716
597
453
(70
)
(980
)
(222
)
(107
)
39
(290
)
(34
)
(7
)
(10
)
(51
)
341
417
597
(980
)
375
(177
)
(188
)
(185
)
359
(191
)
164
229
412
(621
)
184
15
(35
)
(20
)
$
164
$
244
$
412
$
(656
)
$
164
Table of Contents
SUPPLEMENTARY INFORMATION
CONDENSED CONSOLIDATING FINANCIAL STATEMENTS(Continued)
Three Months Ended March 31, 2008
(Unaudited)
Non-
Parent
Guarantor
Guarantor
TWC
Company
Subsidiaries
Subsidiaries
Eliminations
Consolidated
(recast, in millions)
$
$
817
$
3,386
$
(43
)
$
4,160
436
1,614
(43
)
2,007
1
139
609
749
164
537
701
65
65
2
2
1
741
2,825
(43
)
3,524
(1
)
76
561
636
485
345
(80
)
(750
)
(75
)
(124
)
(199
)
(2
)
9
4
11
407
306
485
(750
)
448
(165
)
(130
)
(134
)
247
(182
)
242
176
351
(503
)
266
17
(41
)
(24
)
$
242
$
193
$
351
$
(544
)
$
242
Table of Contents
SUPPLEMENTARY INFORMATION
CONDENSED CONSOLIDATING FINANCIAL STATEMENTS(Continued)
Three Months Ended March 31, 2009
(Unaudited)
Table of Contents
SUPPLEMENTARY INFORMATION CONDENSED
CONSOLIDATING FINANCIAL STATEMENTS(Continued)
Three Months Ended March 31, 2008
(Unaudited)
Table of Contents
41
Approximate Dollar
Total Number of Shares
Value of Shares that
Purchased as Part of
May Yet Be
Total Number of
Average Price Paid
Publicly Announced
Purchased Under the
Period
Shares Purchased
(a)
Per Share
(b)
Plans or Programs
Plans or Programs
2,166
$
24.1970
(a)
(b)
Table of Contents
42
TIME WARNER CABLE INC.
By:
/s/
Robert D. Marcus
Name:
Robert D. Marcus
Title:
Senior Executive Vice President and
Chief Financial Officer
Table of Contents
43
Exhibit
Number
Description
Underwriting Agreement, dated March 23, 2009, among Time Warner Cable Inc. (TWC), the Guarantors and Banc
of America Securities LLC, Citigroup Global Markets Inc., Deutsche Bank Securities Inc., UBS
Securities LLC and Wachovia Capital Markets, LLC, on behalf of themselves and as
representatives of the underwriters listed in Schedule II thereto (incorporated herein by
reference to Exhibit 1.1 to TWCs Current Report on Form 8-K dated March 23, 2009 filed with the Securities and Exchange Commission on March 26, 2009 (the
March 2009 Form 8-K)).
*
Second Amended and Restated Certificate of Incorporation of Time Warner Cable Inc.
(incorporated herein by reference to Exhibit 3.1 to Amendment No. 1 to TWCs Registration
Statement on Form 8-A filed with the Securities and Exchange Commission on March 12, 2009
(the March 2009 Form 8-A)).
*
Amendment to the Second Amended and Restated Certificate of Incorporation of Time Warner
Cable Inc. (incorporated herein by reference to Exhibit 3.2 to the March 2009 Form 8-A).
*
By-laws of Time Warner Cable Inc., effective as of March 12, 2009 (incorporated herein by
reference to Exhibit 3.3 to the March 2009 Form 8-A).
*
First Amendment Agreement, dated March 2, 2009, to the
$2.070 Billion Credit Agreement among TWC, as Borrower, Lehman Brothers Commercial Bank, as Exiting
Lender, the Lenders from time to time party thereto, and Deutsche Bank AG New York Branch,
as Administrative Agent.
First Amendment Agreement, dated
March 3, 2009, to the Amended and Restated Revolving Credit Agreement among TWC, as Borrower, Lehman Brothers Bank, FSB, as
Exiting Lender, the Lenders from time to time party thereto, and Bank of America, N.A., as
Administrative Agent.
Form of 7
1
/
2
% Notes due 2014 (incorporated herein by reference to Exhibit 4.1 to the March
2009 Form 8-K).
*
Form of 8
1
/
4
% Notes due 2019 (incorporated herein by reference to Exhibit 4.2 to the March
2009 Form 8-K).
*
Time Warner Cable Inc. 2006 Stock Incentive Plan, as amended, effective March 12, 2009.
Employment Agreement, dated as of June 1, 2000, by and between Time Warner Entertainment
Company, L.P. (TWE) and Michael LaJoie (incorporated herein by reference to Exhibit 10.41 to
TWCs Current Report on Form 8-K dated February 13, 2007 and filed with the Securities and
Exchange Commission on February 13, 2007).*
First Amendment, dated December 22, 2005, to Employment Agreement between TWE and Michael
LaJoie (incorporated herein by reference to Exhibit 10.33 to TWCs Annual Report on Form 10-K
for the year ended December 31, 2007 and filed with the Securities and Exchange Commission on
February 22, 2008).*
Second Amendment to Employment
Agreement, effective as of January 1, 2008, between TWE and Michael LaJoie.
Extension to Employment Agreement, dated December 12, 2008, between TWE and Michael LaJoie.
Computation of Ratio of Earnings to Fixed Charges and Ratio of Earnings to Combined Fixed Charges and Preferred Dividend Requirements.
Certification of Principal Executive Officer pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002, with respect to the Companys Quarterly Report on Form 10-Q for the quarter
ended March 31, 2009.
Certification of Principal Financial Officer pursuant to Section 302 of the Sarbanes-Oxley
Act of 2002, with respect to the Companys Quarterly Report on Form 10-Q for the quarter
ended March 31, 2009.
Certification of Principal Executive Officer and Principal Financial Officer pursuant to
Section 906 of the Sarbanes-Oxley Act of 2002, with respect to the Companys Quarterly
Report on Form 10-Q for the quarter ended March 31, 2009.
*
2
3
4
LEHMAN BROTHERS COMMERCIAL BANK
|
||||
By: | /s/ Darren S. Lane | |||
Name: | Darren S. Lane | |||
Title: | Operations Officer | |||
DEUTSCHE BANK AG NEW YORK BRANCH
as Administrative Agent |
||||
By: | /s/ Andreas Neumeier | |||
Name: | Andreas Neumeier | |||
Title: | Managing Director | |||
By: | /s/ Yvonne Tilden | |||
Name: | Yvonne Tilden | |||
Title: | Director | |||
TIME WARNER CABLE INC.
as Borrower |
||||
By: | /s/ Matthew Siegel | |||
Name: | Matthew Siegel | |||
Title: | Senior Vice President & Treasuer | |||
Bank of America, N.A.
as Lender |
||||
By: | /s/ Christopher Ray | |||
Name: | Christopher Ray | |||
Title: | Senior Vice President | |||
The Bank of Tokyo-Mitsubishi UFJ,
Ltd.,
|
||||
By: | /s/ Jose Carlos | |||
Name: | Jose Carlos | |||
Title: | Authorized Signatory | |||
BARCLAYS BANK PLC
as Lender |
||||
By: | /s/ David Barton | |||
Name: | David Barton | |||
Title: | Director | |||
BNP Paribas,
as Lender |
||||
By: | /s/ Berangere Allen | |||
Name: | Berangere Allen | |||
Title: | Vice President | |||
By: | /s/ Maria Bliznakova | |||
Name: | Maria Blitnakova | |||
Title: | Vice President |
Citibank, N.A.,
as Lender |
||||
By: | /s/ Julio Ojea-Quintana | |||
Name: | Julio Ojea-Quintana | |||
Title: | Vice President | |||
DEUTSCHE BANK AG NEW YORK BRANCH
as Lender |
||||
By: | /s/ Andreas Neumeier | |||
Name: | Andreas Neumeier | |||
Title: | Managing Director | |||
By: | /s/ Yvonne Tilden | |||
Name: | Yvonne Tilden | |||
Title: | Director |
Fortis Bank SA/NV, New York
Branch,
as Lender |
||||
By: | /s/ Barbara E. Nash | |||
Name: | Barbara E. Nash | |||
Title: | Managing Director & Group Head | |||
By: | /s/ John W. Deegan | |||
Name: | John W. Deegan | |||
Title: | Director & Group Head |
GOLDMAN SACHS BANK USA
as Lender |
||||
By: | /s/ John Makrinos | |||
Name: | John Makrinos | |||
Title: | Vice President | |||
Name: | John Makrinos | |||
Title: | Authorized Signatory |
GOLDMAN SACHS CREDIT PARTNERS,
L.P.
as Lender |
||||
By: | /s/ John Makrinos | |||
Name: | John Makrinos | |||
Title: | Vice President | |||
Name: | John Makrinos | |||
Title: | Authorized Signatory |
MIZUHO CORPORATE BANK, LTD.,
as Lender |
||||
By: | /s/ Raymond Ventura | |||
Name: | Raymond Ventura | |||
Title: | Deputy General Manager | |||
MORGAN STANLEY BANK, N.A.,
as Lender |
||||
By: | /s/ Melissa James | |||
Name: | Melissa James | |||
Title: | Authorized Signatory | |||
The Royal Bank of Scotland plc,
as Lender |
||||
By: | /s/ Vincent Fitzgerald | |||
Name: | Vincent Fitzgerald | |||
Title: | Managing Director | |||
Sumitomo Mitsui Banking
Corporation,
as Lender |
||||
By: | /s/ Yoshihire Hyakutome | |||
Name: | Yoshihire Hyakutome | |||
Title: | General Manager | |||
Wachovia Bank, N.A.
as Lender |
||||
By: | /s/ Joe Mynatt | |||
Name: | Joe Mynatt | |||
Title: | Director | |||
TIME WARNER ENTERTAINMENT
COMPANY, L.P.
as Guarantor |
||||
By: | /s/ Matthew Siegel | |||
Name: | Matthew Siegel | |||
Title: | Senior Vice President & Treasurer | |||
TW NY CABLE HOLDING INC.,
as Guarantor |
||||
By: | /s/ Matthew Siegel | |||
Name: | Matthew Siegel | |||
Title: | Senior Vice President & Treasurer | |||
2
3
4
LEHMAN BROTHERS BANK, FSB
|
||||
By: | /s/ Theodore Janulis | |||
Name: | Theodore Janulis | |||
Title: | Chairman | |||
BANK OF AMERICA, N.A.
as Administrative Agent |
||||
By: | /s/ Todd Shipley | |||
Name: | Todd Shipley | |||
Title: | Senior Vice President | |||
BANK OF AMERICA, N.A.
,
as Lender |
||||
By: | /s/ Christopher Ray | |||
Name: | Christopher Ray | |||
Title: | Senior Vice President | |||
DEUTSCHE BANK AG NEW YORK BRANCH
as Co-Syndication Agent, a Reference Bank and a Lender |
||||
By: | /s/ Heidi Sandquist | |||
Name: | Heidi Sandquist | |||
Title: | Director | |||
By: | /s/ Ming K. Chu | |||
Name: | Ming K. Chu | |||
Title: | Vice President |
The Bank of Tokyo-Mitsubishi UFJ,
Ltd.,
as Lender |
||||
By: | /s/ Jose Carlos | |||
Name: | Jose Carlos | |||
Title: | Authorized Signatory | |||
The Royal Bank of Scotland plc,
as Lender |
||||
By: | /s/ Vincent Fitzgerald | |||
Name: | Vincent Fitzgerald | |||
Title: | Managing Director | |||
CALYON New York Branch,
as Lender |
||||
By: | /s/ Mischa Zabotin | |||
Name: | Mischa Zabotin | |||
Title: | Managing Director | |||
By: | /s/ Michael Madnick | |||
Name: | Michael Madnick | |||
Title: | Managing Director |
Sumitomo Mitsui Banking
Corporation,
as Lender |
||||
By: | /s/ Yoshihiro Hyakutome | |||
Name: | Yoshihiro Hyakutome | |||
Title: | General Manager | |||
ABN AMRO Bank N.V.,
as Lender |
||||
By: | /s/ David Carrington | |||
Name: | David Carrington | |||
Title: | Director | |||
By: | /s/ Suneel S. Crill | |||
Name: | Suneel S. Crill | |||
Title: | Assistant Vice President | |||
THE BANK OF NOVA SCOTIA,
as Lender |
||||
By: | /s/ Brenda S. Insull | |||
Name: | Brenda S. Insull | |||
Title: | Authorized Signatory | |||
Dresdner Bank AG New York Branch,
as Lender |
||||
By: | /s/ Brian Smith | |||
Name: | Brian Smith | |||
Title: | Managing Director | |||
By: | /s/ Mark McGuigan | |||
Name: | Mark McGuigan | |||
Title: | Vice President | |||
HSBC BANK USA, NATIONAL
ASSOCIATION,
as Lender |
||||
By: | /s/ Thomas T. Rogers | |||
Name: | Thomas T. Rogers | |||
Title: | Senior Vice President | |||
Morgan Stanley Senior Funding,
as Lender |
||||
By: | /s/ Janine Haas | |||
Name: | Janine Haas | |||
Title: | Vice President | |||
Lloyds TSB Bank plc
as Lender |
||||
By: | /s/ Deborah Carlson | |||
Name: | Deborah Carlson | |||
Title: | Director | |||
By: | /s/ Carlos Lopez | |||
Name: | Carlos Lopez | |||
Title: | Associate Director |
THE BANK OF NEW YORK MELLON,
as Lender |
||||
By: | /s/ Thomas J. Tarasovich, Jr. | |||
Name: | Thomas J. Tarasovich, Jr. | |||
Title: | Vice President | |||
CREDIT SUISSE, CAYMAN ISLANDS
BRANCH,
as Lender |
||||
By: | /s/ Robert Hetu | |||
Name: | Robert Hetu | |||
Title: | Managing Director | |||
By: | /s/ Christopher Reo Day | |||
Name: | Christopher Reo Day | |||
Title: | Associate | |||
LANDESBANK BADEN-WÜRTTEMBERG
(as legal successor of Landesbank Sachsen Girozentrale) as Lender |
||||
By: | /s/ Andreas Trapp | |||
Name: | Andreas Trapp | |||
Title: | Vice President | |||
By: | /s/ Gisela Huber | |||
Name: | Gisela Huber | |||
Title: | Senior Risk Manager | |||
MERRILL LYNCH BANK USA,
as Lender |
||||
By: | /s/ Louis Alder | |||
Name: | Louis Alder | |||
Title: | First Vice President | |||
TIME WARNER CABLE INC.
as Borrower |
||||
By: | /s/ Matthew Siegel | |||
Name: | Matthew Siegel | |||
Title: | Senior Vice President & Treasurer | |||
The undersigned Guarantors acknowledge and agree to the First Amendment Agreement and confirm that all of their obligations under the Credit Documents remain in full force and effect after giving effect thereto and the transactions contemplated thereby: | ||||
TIME WARNER ENTERTAINMENT
COMPANY, LP, TIME WARNER NY CABLE LLC, as Guarantors |
||||
By: | /s/ Matthew Siegel | |||
Name: | Matthew Siegel | |||
Title: | Senior Vice President & Treasurer | |||
(a) | Act means The Securities Exchange Act of 1934, as amended, or any successor thereto. | ||
(b) | Affiliate means any entity that is consolidated with the Company for financial reporting purposes or any other entity designated by the Board in which the Company or an Affiliate has a direct or indirect equity interest of at least twenty percent (20%), measured by reference to vote or value. | ||
(c) | Award means an Option, Stock Appreciation Right, Restricted Stock or Other Stock-Based Award granted pursuant to the Plan. | ||
(d) | Board means the Board of Directors of the Company. | ||
(e) | Change in Control means the occurrence of any of the following events: |
1
(f) | Code means The Internal Revenue Code of 1986, as amended, or any successor thereto. | ||
(g) | Committee means the Compensation Committee of the Board or its successor, or such other committee of the Board to which the Board has delegated power to act under or pursuant to the provisions of the Plan or a subcommittee of the |
2
Compensation Committee (or such other committee) established by the Compensation Committee or such other committee. | |||
(h) | Company means Time Warner Cable Inc., a Delaware corporation. | ||
(i) | Effective Date means the date the Board approved the Plan (June 8, 2006). | ||
(j) | Employment means (i) a Participants employment if the Participant is an employee of the Company or any of its Affiliates and (ii) a Participants services as a non-employee director, if the Participant is a non-employee member of the Board or the board of directors of an Affiliate; provided , however that unless otherwise determined by the Committee, a change in a Participants status from employee to non-employee (other than to a director of the Company or an Affiliate) shall constitute a termination of employment hereunder. | ||
(k) | Fair Market Value means, on a given date, (i) if there should be a public market for the Shares on such date, the closing price of the Shares on the New York Stock Exchange, or, if the Shares are not listed or admitted on any national securities exchange, the average of the per Share closing bid price and per Share closing asked price on such date as quoted on the National Association of Securities Dealers Automated Quotation System (or such market in which such prices are regularly quoted) (the NASDAQ), or, if no sale of Shares shall have been reported on the New York Stock Exchange or quoted on the NASDAQ on such date, then the immediately preceding date on which sales of the Shares have been so reported or quoted shall be used, and (ii) if there should not be a public market for the Shares on such date, the Fair Market Value shall be the value established by the Committee in good faith. | ||
(l) | ISO means an Option that is also an incentive stock option granted pursuant to Section 6(d). | ||
(m) | Make-Up Awards means a grant of Awards to Post-Separation TWCable Employees that may be made by the Committee if the Committee determines that such grant is necessary or appropriate to compensate Post-Separation TWCable Employees for any lost or decreased value of TWX Equity Compensation Awards that they hold immediately prior to the Separation due to the forfeiture of such TWX Equity Compensation Awards or a reduction in the time period to exercise any such TWX Equity Compensation Awards that are stock options. | ||
(n) | Option means a stock option granted pursuant to Section 6. | ||
(o) | Option Price means the price for which a Share can be purchased upon exercise of an Option, as determined pursuant to Section 6(a). | ||
(p) | Other Stock-Based Awards means awards Granted pursuant to Section 9. | ||
(q) | Outstanding RSU means an RSU that is outstanding immediately prior to the Separation. |
3
(r) | Participant means an employee, prospective employee, director or advisor of the Company or an Affiliate who is selected by the Committee to participate in the Plan. | ||
(s) | Performance-Based Awards means certain Other Stock-Based Awards granted pursuant to Section 9(b). | ||
(t) | Plan means the Time Warner Cable Inc. 2006 Stock Incentive Plan, as amended from time to time. | ||
(u) | Post-Separation TWCable Employee has the meaning ascribed thereto in the Separation Agreement. | ||
(v) | Ratio means the quotient resulting from dividing (a) the grant date fair value of a share of Restricted Stock or other Stock-Based Award payable in Stock, as the case may be, as determined for financial reporting purposes (the grant date fair value) by (b) the grant date fair value of an Option with a ten-year term that becomes exercisable in installments of 25% on the first four anniversaries of the date of grant; provided, however, that if such grant date fair value is not available, the fair value shall be the fair value as determined for financial reporting purposes as of the most recently completed fiscal quarter of the Company for which financial statements and such valuation have been prepared. | ||
(w) | Recapitalization has the meaning ascribed thereto in the Separation Agreement. | ||
(x) | Restricted Stock means any Share granted under Section 8. | ||
(y) | RSU means an Other Stock-Based Award which is a restricted stock unit award. | ||
(z) | RSU Agreement means the Restricted Stock Unit Agreement between a holder of an Outstanding RSU and the Company governing the terms and conditions of the Outstanding RSU. | ||
(aa) | Separation has the meaning ascribed thereto in the Separation Agreement. | ||
(bb) | Separation Agreement means the Separation Agreement, dated as of May 20, 2008, among Time Warner Inc., the parent corporation of the Company, Time Warner Entertainment Company, L.P., TW NY Cable Holding Inc., Warner Communications Inc., Historic TW Inc. and American Television and Communications Corporation. | ||
(cc) | Separation Date has the meaning ascribed thereto in the Separation Agreement. |
4
(dd) | Shares means shares of Class A Common Stock of the Company, $.01 par value per share, unless and until the effective date of the Recapitalization, in which case, Shares shall mean shares of TWCable Common Stock. | ||
(ee) | Special Dividend has the meaning ascribed thereto in the Separation Agreement. | ||
(ff) | Special Dividend Equivalent RSUs means RSUs that are awarded under the Plan in lieu of any cash credit that would otherwise be made with respect to Outstanding RSUs as a result of the Special Dividend, as provided in the RSU Agreements, but only in respect of holders of Outstanding RSUs who elect to receive such additional RSUs in lieu of such cash credit, in accordance with such procedures established by the Committee. The aggregate number of each of (i) the Special Dividend Equivalent RSUs and (ii) the number of Shares underlying the Special Dividend Equivalent RSUs shall be the number that is equal to the otherwise applicable aggregate cash credits with respect to which holders of Outstanding RSUs elected to receive Special Dividend Equivalent RSUs, divided by the Fair Market Value of one Share after giving effect to the Special Dividend, as determined in accordance with procedures established by the Committee. Except as the Committee may otherwise provide, the Special Dividend Equivalent RSUs shall vest and be paid out on the same basis as the Outstanding RSUs to which they relate. | ||
(gg) | Stock Appreciation Right means a stock appreciation right granted pursuant to Section 7. | ||
(hh) | Subsidiary means a subsidiary corporation, as defined in Section 424(f) of the Code (or any successor section thereto), of the Company. | ||
(ii) | TWCable Common Stock has the meaning ascribed thereto in the Separation Agreement. | ||
(jj) | TWX Equity Compensation Award has the meaning ascribed thereto in the Separation Agreement. | ||
(kk) | Yearly Share Limit means the maximum aggregate number of Shares with respect to which Awards may be granted during a calendar year, net of any Shares which are subject to Awards (or portions thereof) which, during such year, terminate or lapse without payment of consideration, expressed as a percentage of the number of Shares outstanding on December 31 of the immediately preceding calendar year, as set out in Section 3 of the Plan. |
5
(a) | The Plan shall be administered by the Committee, which may delegate its duties and powers in whole or in part to any subcommittee thereof consisting solely of at least two individuals who are intended to qualify as independent directors within the meaning of the New York Stock Exchange listed company rules (to the extent required), Non-Employee Directors within the meaning of Rule 16b-3 under the Act (or any successor rule thereto) and, to the extent required by Section 162(m) of the Code (or any successor section thereto), outside directors within the meaning thereof. In addition, the Committee may delegate the authority to grant Awards under the Plan to any employee or group of employees of the Company or an Affiliate; provided that such grants are consistent with guidelines established by the Committee from time to time. | ||
(b) | The Committee shall have the full power and authority to make, and establish the terms and conditions of, any Award to any person eligible to be a Participant, consistent with the provisions of the Plan and to waive any such terms and conditions at any time (including, without limitation, accelerating or waiving any vesting conditions). Awards may, in the discretion of the Committee, be made under the Plan in assumption of, or in substitution for, outstanding awards previously granted by the Company or its affiliates or a company acquired by the Company or with which the Company combines. The number of Shares underlying such substitute awards shall be counted against the aggregate number of Shares available for Awards under the Plan. |
6
(c) | The Committee is authorized to interpret the Plan, to establish, amend and rescind any rules and regulations relating to the Plan, and to make any other determinations that it deems necessary or desirable for the administration of the Plan, and may delegate such authority, as it deems appropriate. The Committee may correct any defect or supply any omission or reconcile any inconsistency in the Plan in the manner and to the extent the Committee deems necessary or desirable. Any decision of the Committee in the interpretation and administration of the Plan, as described herein, shall lie within its sole and absolute discretion and shall be final, conclusive and binding on all parties concerned (including, but not limited to, Participants and their beneficiaries or successors). | ||
(d) | The Committee shall require payment of any amount it may determine to be necessary to withhold for federal, state, local or other taxes as a result of the exercise, grant or vesting of an Award. Unless the Committee specifies otherwise, the Participant may elect to pay a portion or all of such withholding taxes by (a) delivery of Shares or (b) having Shares withheld by the Company with a Fair Market Value equal to the minimum statutory withholding rate from any Shares that would have otherwise been received by the Participant. |
(a) | No Award may be granted under the Plan after the fifth anniversary of the first grant of an Award under the Plan, but Awards granted prior to such fifth anniversary may extend beyond that date. | ||
(b) | No Option or Stock Appreciation Right, once granted hereunder, may be repriced. |
(a) | Option Price . The Option Price per Share shall be determined by the Committee, but shall not be less than 100% of the Fair Market Value of a Share on the date an Option is granted. | ||
(b) | Exercisability . Options granted under the Plan shall be exercisable at such time and upon such terms and conditions as may be determined by the Committee, but in no event shall an Option be exercisable more than ten years after the date it is granted, except as may be provided pursuant to Section 15. | ||
(c) | Exercise of Options . Except as otherwise provided in the Plan or in an Award agreement, an Option may be exercised for all, or from time to time any part, of the Shares for which it is then exercisable. For purposes of this Section 6, the |
7
exercise date of an Option shall be the date a notice of exercise is received by the Company, together with provision for payment of the full purchase price in accordance with this Section 6(c). The purchase price for the Shares as to which an Option is exercised shall be paid to the Company, as designated by the Committee, pursuant to one or more of the following methods: (i) in cash or its equivalent (e.g., by check); (ii) in Shares having a Fair Market Value equal to the aggregate Option Price for the Shares being purchased and satisfying such other requirements as may be imposed by the Committee; provided that such Shares have been held by the Participant for no less than six months (or such other period as established from time to time by the Committee in order to avoid adverse accounting treatment applying generally accepted accounting principles); (iii) partly in cash and partly in such Shares or (iv) if there is a public market for the Shares at such time, through the delivery of irrevocable instructions to a broker to sell Shares obtained upon the exercise of the Option and to deliver promptly to the Company an amount out of the proceeds of such Sale equal to the aggregate Option Price for the Shares being purchased. No Participant shall have any rights to dividends or other rights of a stockholder with respect to Shares subject to an Option until the Shares are issued to the Participant. | |||
(d) | ISOs . The Committee may grant Options under the Plan that are intended to be ISOs. Such ISOs shall comply with the requirements of Section 422 of the Code (or any successor section thereto). No ISO may be granted to any Participant who at the time of such grant, owns more than ten percent of the total combined voting power of all classes of stock of the Company or of any Subsidiary, unless (i) the Option Price for such ISO is at least 110% of the Fair Market Value of a Share on the date the ISO is granted and (ii) the date on which such ISO terminates is a date not later than the day preceding the fifth anniversary of the date on which the ISO is granted. Any Participant who disposes of Shares acquired upon the exercise of an ISO either (i) within two years after the date of grant of such ISO or (ii) within one year after the transfer of such Shares to the Participant, shall notify the Company of such disposition and of the amount realized upon such disposition. All Options granted under the Plan are intended to be nonqualified stock options, unless the applicable Award agreement expressly states that the Option is intended to be an ISO. If an Option is intended to be an ISO, and if for any reason such Option (or portion thereof) shall not qualify as an ISO, then, to the extent of such non-qualification, such Option (or portion thereof) shall be regarded as a nonqualified stock option granted under the Plan; provided that such Option (or portion thereof) otherwise complies with the Plans requirements relating to nonqualified stock options. In no event shall any member of the Committee, the Company or any of its Affiliates (or their respective employees, officers or directors) have any liability to any Participant (or any other person) due to the failure of an Option to qualify for any reason as an ISO. | ||
(e) | Attestation . Wherever in this Plan or any agreement evidencing an Award a Participant is permitted to pay the exercise price of an Option or taxes relating to the exercise of an Option by delivering Shares, the Participant may, subject to procedures satisfactory to the Committee, satisfy such delivery requirement by |
8
presenting proof of beneficial ownership of such Shares, in which case the Company shall treat the Option as exercised without further payment and/or shall withhold such number of Shares from the Shares acquired by the exercise of the Option, as appropriate. |
(a) | Grants . The Committee may grant (i) a Stock Appreciation Right independent of an Option or (ii) a Stock Appreciation Right in connection with an Option, or a portion thereof. A Stock Appreciation Right granted pursuant to clause (ii) of the preceding sentence (A) may be granted at the time the related Option is granted or at any time prior to the exercise or cancellation of the related Option, (B) shall cover the same number of Shares covered by an Option (or such lesser number of Shares as the Committee may determine) and (C) shall be subject to the same terms and conditions as such Option except for such additional limitations as are contemplated by this Section 7 (or such additional limitations as may be included in an Award agreement). | ||
(b) | Terms . The exercise price per Share of a Stock Appreciation Right shall be an amount determined by the Committee but in no event shall such amount be less than the Fair Market Value of a Share on the date the Stock Appreciation Right is granted; provided , however , that notwithstanding the foregoing in the case of a Stock Appreciation Right granted in conjunction with an Option, or a portion thereof, the exercise price may not be less than the Option Price of the related Option. Each Stock Appreciation Right granted independent of an Option shall entitle a Participant upon exercise to an amount equal to (i) the excess of (A) the Fair Market Value on the exercise date of one Share over (B) the exercise price per Share, times (ii) the number of Shares covered by the Stock Appreciation Right. Each Stock Appreciation Right granted in conjunction with an Option, or a portion thereof, shall entitle a Participant to surrender to the Company the unexercised Option, or any portion thereof, and to receive from the Company in exchange therefor an amount equal to (i) the excess of (A) the Fair Market Value on the exercise date of one Share over (B) the Option Price per Share, times (ii) the number of Shares covered by the Option, or portion thereof, which is surrendered. Payment shall be made in Shares or in cash, or partly in Shares and partly in cash (any such Shares valued at such Fair Market Value), all as shall be determined by the Committee. Stock Appreciation Rights may be exercised from time to time upon actual receipt by the Company of written notice of exercise stating the number of Shares with respect to which the Stock Appreciation Right is being exercised. The date a notice of exercise is received by the Company shall be the exercise date. No fractional Shares will be issued in payment for Stock Appreciation Rights, but instead cash will be paid for a fraction or, if the Committee should so determine, the number of Shares will be rounded downward to the next whole Share. No Participant shall have any rights to dividends or other rights of a stockholder with respect to Shares covered by Stock Appreciation Rights until the Shares are issued to the Participant. |
9
(c) | Limitations . The Committee may impose, in its discretion, such conditions upon the exercisability of Stock Appreciation Rights as it may deem fit, but in no event shall a Stock Appreciation Right be exercisable more than ten years after the date it is granted, except as may be provided pursuant to Section 15. |
(a) | Grant . Subject to the provisions of the Plan, the Committee shall determine the number of Shares of Restricted Stock to be granted to each Participant, the duration of the period during which, and the conditions, if any, under which, the Restricted Stock may be forfeited to the Company, and the other terms and conditions of such Awards; provided that, except with respect to Awards to members of the Companys Board, not less than 95% of the Shares of Restricted Stock (other than those awarded pursuant to Section 8(d)) shall remain subject to forfeiture for at least three years after the date of grant, subject to earlier termination of such potential for forfeiture in whole or in part in the event of a Change in Control or the death, disability or other termination of the Participants employment . | ||
(b) | Transfer Restrictions . Shares of Restricted Stock may not be sold, assigned, transferred, pledged or otherwise encumbered, except as provided in the Plan or the applicable Award agreement. Certificates, or other evidence of ownership, issued in respect of Shares of Restricted Stock shall be registered in the name of the Participant and deposited by such Participant, together with a stock power endorsed in blank, with the Company. After the lapse of the restrictions applicable to such Shares of Restricted Stock, the Company shall deliver such certificates, or other evidence of ownership, to the Participant or the Participants legal representative. | ||
(c) | Dividends . Dividends paid on any Shares of Restricted Stock may be paid directly to the Participant, withheld by the Company subject to vesting of the Restricted Shares pursuant to the terms of the applicable Award agreement, or may be reinvested in additional Shares of Restricted Stock, as determined by the Committee in its sole discretion. | ||
(d) | Performance-Based Grants . Notwithstanding anything to the contrary herein, certain Shares of Restricted Stock granted under this Section 8 may, at the discretion of the Committee, be granted in a manner which is intended to be deductible by the Company under Section 162(m) of the Code (or any successor section thereto). The restrictions applicable to such Restricted Stock shall lapse based wholly or partially on the attainment of written performance goals approved by the Committee for a performance period established by the Committee (i) while the outcome for that performance period is substantially uncertain and (ii) no more than 90 days after the commencement of the performance period to which the performance goal relates or, if less, the number of days which is equal to 25 percent of the relevant performance period. The performance goals, which must be objective, shall be based upon one or more of the criteria set forth in |
10
Section 9(b) below. The Committee shall determine in its discretion whether, with respect to a performance period, the applicable performance goals have been met with respect to a given Participant and, if they have, shall so certify prior to the release of the restrictions on the Shares. |
(a) | Generally . The Committee, in its sole discretion, may grant or sell Awards of Shares and Awards that are valued in whole or in part by reference to, or are otherwise based on the Fair Market Value of, Shares (Other Stock-Based Awards). Such Other Stock-Based Awards shall be in such form, and dependent on such conditions, as the Committee shall determine, including, without limitation, the right to receive, or vest with respect to, one or more Shares (or the equivalent cash value of such Shares) upon the completion of a specified period of service, the occurrence of an event and/or the attainment of performance objectives. Other Stock-Based Awards may be granted alone or in addition to any other Awards granted under the Plan. Subject to the provisions of the Plan, the Committee shall determine the number of Shares to be awarded to a Participant under (or otherwise related to) such Other Stock-Based Awards; whether such Other Stock-Based Awards shall be settled in cash, Shares or a combination of cash and Shares; and all other terms and conditions of such Awards (including, without limitation, the vesting provisions thereof and provisions ensuring that all Shares so awarded and issued shall be fully paid and non-assessable). The maximum amount of Other Stock-Based Awards that may be granted during a calendar year to any Participant shall be: (x) with respect to Other Stock-Based Awards that are denominated or payable in Shares, the number of Shares equal to 1,500,000 divided by the Ratio, and (y) with respect to Other Stock-Based Awards that are not denominated or payable in Shares, $10 million. Notwithstanding any other provision, with respect to Other Stock-Based Awards settled in Shares that are subject to time-based vesting, except with respect to Awards to members of the Companys Board, not less than 95% of such Other Stock-Based Awards payable in Shares shall vest and become payable at least three years after the date of grant, subject to earlier termination of such potential for forfeiture in whole or in part in the event of a Change in Control or the death, disability or other termination of the Participants employment; provided that, for purposes of this sentence, any Other Stock-Based Awards granted by the Committee in its discretion as Special Make-Up Awards (as defined below) and Special Dividend Equivalent RSUs shall not be included in determining the percentage of Other Stock-Based Awards settled in Shares that are subject to time-based vesting that vest and become payable less than three years after the date of grant. For purposes of this Section 9(a), a Special Make-Up Award means a Make-Up Award that is intended to compensate for any lost or decreased value of a TWX Equity Compensation Award which is a restricted stock unit award or which makes up for a loss or forfeiture of the intrinsic value of a TWX Equity Compensation Award that is an option. |
11
(b) | Performance-Based Awards . Notwithstanding anything to the contrary herein, certain Other Stock-Based Awards granted under this Section 9 may be granted in a manner which is intended to be deductible by the Company under Section 162(m) of the Code (or any successor section thereto) (Performance-Based Awards). A Participants Performance-Based Award shall be determined based on the attainment of written performance goals approved by the Committee for a performance period of not less than one year established by the Committee (i) while the outcome for that performance period is substantially uncertain and (ii) no more than 90 days after the commencement of the performance period to which the performance goal relates or, if less, the number of days which is equal to 25 percent of the relevant performance period. The performance goals, which must be objective, shall be based upon one or more of the following criteria: (i) operating income before depreciation and amortization; (ii) operating income; (iii) earnings per share; (iv) return on shareholders equity; (v) revenues or sales; (vi) free cash flow; (vii) return on invested capital; (viii) total stockholder return; and (ix) revenue generating unit-based metrics. The foregoing criteria may relate to the Company, one or more of its Affiliates or one or more of its or their divisions or units, or any combination of the foregoing, and may be applied on an absolute basis and/or be relative to one or more peer group companies or indices, or any combination thereof, all as the Committee shall determine. In addition, to the degree consistent with Section 162(m) of the Code (or any successor section thereto), the performance goals may be calculated without regard to extraordinary items. The Committee shall determine whether, with respect to a performance period, the applicable performance goals have been met with respect to a given Participant and, if they have, shall so certify and ascertain the amount of the applicable Performance-Based Award. No Performance-Based Awards will be paid for such performance period until such certification is made by the Committee. The amount of the Performance-Based Award actually paid to a given Participant may be less than the amount determined by the applicable performance goal formula, at the discretion of the Committee. The amount of the Performance-Based Award determined by the Committee for a performance period shall be paid to the Participant at such time as determined by the Committee in its sole discretion after the end of such performance period; provided , however , that a Participant may, if and to the extent permitted by the Committee and consistent with the provisions of Section 162(m) of the Code and Section 19 below, elect to defer payment of a Performance-Based Award. |
(a) | Generally . In the event of any change in the outstanding Shares (including, without limitation, the value thereof) after the Effective Date by reason of any Share dividend or split, reorganization, recapitalization, merger, consolidation, spin-off, combination, combination or transaction or exchange of Shares or other |
12
corporate exchange, or any distribution to stockholders of Shares other than regular cash dividends or any transaction similar to the foregoing, the Committee in its sole discretion and without liability to any person shall make such substitution or adjustment, if any, as it deems to be equitable (subject to Section 19), as to (i) the number or kind of Shares or other securities issued or reserved for issuance pursuant to the Plan or pursuant to outstanding Awards, (ii) the maximum number of Shares for which Awards (including limits established for Restricted Stock or Other Stock-Based Awards) may be granted during a calendar year to any Participant, (iii) the Option Price or exercise price of any Stock Appreciation Right and/or (iv) any other affected terms of such Awards. Notwithstanding the foregoing, in recognition of the Separation and the Special Dividend, (A) the number of Shares reserved for issuance pursuant to the Plan shall be increased by the number that is, as contemplated by the foregoing, determined by the Committee to be equitable to adjust Options held by Post-Separation TWCable Employees or other Option holders immediately prior to the Separation Date to account for any decrease in the Fair Market Value per Share resulting from the Special Dividend, it being understood that the Committee shall also exercise its power under the Plan to equitably adjust the exercise price of such Options to reflect the Special Dividend; (B) the number of Shares reserved for issuance pursuant to the Plan shall be increased by the number of Shares subject to Special Dividend Equivalent RSUs (as calculated in accordance with the definition of Special Dividend Equivalent RSUs); (C) the number of Shares authorized for issuance pursuant to the Plan shall be increased by 25,000,000 in addition to the increase provided for in clauses (A) and (B); (D) the Yearly Share Limit shall be increased from the previously-applicable 1.5% to 1.75%; and (E) none of the Shares underlying the Option adjustment contemplated by clause (A), the Shares subject to Special Dividend Equivalent RSUs as contemplated by clause (B), or the Shares underlying the Make-Up Awards shall be included in determining whether the Yearly Share Limit has been exceeded; provided that the Committee shall not make any adjustments to the number of Shares or other securities reserved or authorized for issuance pursuant to the Plan or the Yearly Share Limit in connection with the Separation or the Special Dividend, other than the adjustments described herein and pursuant to the Recapitalization as described in the Plan, as amended. |
(b) | Change in Control . In the event of a Change in Control after the Effective Date, the Committee may (subject to Section 19), but shall not be obligated to, (A) accelerate, vest or cause the restrictions to lapse with respect to, all or any portion of an Award, (B) cancel Awards for fair value (as determined in the sole discretion of the Committee) which, in the case of Options and Stock Appreciation Rights, may equal the excess, if any, of value of the consideration to be paid in the Change in Control transaction to holders of the same number of Shares subject to such Options or Stock Appreciation Rights (or, if no consideration is paid in any such transaction, the Fair Market Value of the Shares subject to such Options or Stock Appreciation Rights) over the aggregate exercise price of such Options or Stock Appreciation Rights, (C) provide for the issuance of substitute Awards that will substantially preserve the otherwise applicable |
13
terms of any affected Awards previously granted hereunder as determined by the Committee in its sole discretion or (D) provide that for a period of at least 30 days prior to the Change in Control, such Options shall be exercisable as to all shares subject thereto and that upon the occurrence of the Change in Control, such Options shall terminate and be of no further force and effect. |
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TIME WARNER ENTERTAINMENT COMPANY, L.P | ||||||
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By: |
/s/ MARC
LAWRENCE-APFELBAUM
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EXECUTIVE VICE PRESIDENT, | |||||
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GENERAL COUNSEL & SECRETARY | |||||
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Date: |
8/1/08
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Agreed and Accepted: | ||||
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MICHAEL LAJOIE | ||||
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/s/ MICHAEL LAJOIE
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Date:
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7/31/08
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5
Sincerely, | ||||||
TIME WARNER ENTERTAINMENT | ||||||
COMPANY, L.P. | ||||||
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||||||
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By: |
/s/ TOMAS MATHEWS
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EXECUTIVE VICE PRESIDENT, | |||||
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HUMAN RESOURCES |
Agreed and Accepted: | ||||
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MICHAEL LAJOIE | ||||
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/s/ MICHAEL LAJOIE | ||||
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Date:
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12/12/08
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Three Months | ||||||||||||||||||||||||
Ended | ||||||||||||||||||||||||
March 31, | Year Ended December 31, | |||||||||||||||||||||||
2009 | 2008 | 2007 | 2006 | 2005 | 2004 | |||||||||||||||||||
Earnings:
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||||||||||||||||||||||||
Net income (loss) before income
taxes, discontinued operations and
cumulative effect of accounting
change
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$ | 375 | $ | (13,071 | ) | $ | 2,028 | $ | 1,691 | $ | 1,421 | $ | 1,175 | |||||||||||
Interest expense, net
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293 | 961 | 907 | 690 | 501 | 491 | ||||||||||||||||||
Portion of rents representative of
an interest factor
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18 | 63 | 61 | 50 | 32 | 33 | ||||||||||||||||||
Amortization of capitalized interest
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1 | 3 | 3 | 2 | 2 | 2 | ||||||||||||||||||
Preferred stock dividend
requirements of majority-owned
subsidiaries
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| | | | | | ||||||||||||||||||
Distributions received less
earnings of less than 50% owned
companies
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20 | 6 | 63 | 4 | 4 | 6 | ||||||||||||||||||
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Total earnings
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$ | 707 | $ | (12,038 | ) | $ | 3,062 | $ | 2,437 | $ | 1,960 | $ | 1,707 | |||||||||||
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Fixed Charges:
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Interest expense, net
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$ | 293 | $ | 961 | $ | 907 | $ | 690 | $ | 501 | $ | 491 | ||||||||||||
Portion of rents representative of
an interest factor
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18 | 63 | 61 | 50 | 32 | 33 | ||||||||||||||||||
Capitalized interest
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| 1 | 5 | 2 | 1 | 1 | ||||||||||||||||||
Preferred stock dividend
requirements of majority-owned
subsidiaries
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| | | | | | ||||||||||||||||||
Adjustment for partially owned
subsidiaries and 50% owned
companies
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| | | 43 | 60 | 39 | ||||||||||||||||||
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Total fixed charges
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$ | 311 | $ | 1,025 | $ | 973 | $ | 785 | $ | 594 | $ | 564 | ||||||||||||
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Pretax income necessary to cover
preferred dividend requirements
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| | | | | | ||||||||||||||||||
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Total combined
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$ | 311 | $ | 1,025 | $ | 973 | $ | 785 | $ | 594 | $ | 564 | ||||||||||||
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Ratio of earnings to fixed charges
(deficiency in the coverage of
fixed charges by earnings before
fixed charges)
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2.3 | x | $ | (13,063 | ) | 3.1 | x | 3.1 | x | 3.3 | x | 3.0 | x | |||||||||||
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Ratio of earnings to combined fixed
charges and preferred dividend
requirements (deficiency in the
coverage of combined fixed charges
and preferred dividend requirements
deficiency)
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2.3 | x | $ | (13,063 | ) | 3.1 | x | 3.1 | x | 3.3 | x | 3.0 | x | |||||||||||
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1. | I have reviewed this quarterly report on Form 10-Q of Time Warner Cable Inc.; | ||
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | ||
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | ||
4. | The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | |||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | |||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | |||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | |||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: April 29, 2009
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By: | /s/ Glenn A. Britt | ||
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Name: Glenn A. Britt | |||
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Title: Chief Executive Officer | |||
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Time Warner Cable Inc. |
1. | I have reviewed this quarterly report on Form 10-Q of Time Warner Cable Inc.; | ||
2. | Based on my knowledge, this report does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements made, in light of the circumstances under which such statements were made, not misleading with respect to the period covered by this report; | ||
3. | Based on my knowledge, the financial statements, and other financial information included in this report, fairly present in all material respects the financial condition, results of operations and cash flows of the registrant as of, and for, the periods presented in this report; | ||
4. | The registrants other certifying officer and I are responsible for establishing and maintaining disclosure controls and procedures (as defined in Exchange Act Rules 13a-15(e) and 15d-15(e)) and internal control over financial reporting (as defined in Exchange Act Rules 13a-15(f) and 15d-15(f)) for the registrant and have: |
(a) | Designed such disclosure controls and procedures, or caused such disclosure controls and procedures to be designed under our supervision, to ensure that material information relating to the registrant, including its consolidated subsidiaries, is made known to us by others within those entities, particularly during the period in which this report is being prepared; | |||
(b) | Designed such internal control over financial reporting, or caused such internal control over financial reporting to be designed under our supervision, to provide reasonable assurance regarding the reliability of financial reporting and the preparation of financial statements for external purposes in accordance with generally accepted accounting principles; | |||
(c) | Evaluated the effectiveness of the registrants disclosure controls and procedures and presented in this report our conclusions about the effectiveness of the disclosure controls and procedures, as of the end of the period covered by this report based on such evaluation; and | |||
(d) | Disclosed in this report any change in the registrants internal control over financial reporting that occurred during the registrants most recent fiscal quarter (the registrants fourth fiscal quarter in the case of an annual report) that has materially affected, or is reasonably likely to materially affect, the registrants internal control over financial reporting; and |
5. | The registrants other certifying officer and I have disclosed, based on our most recent evaluation of internal control over financial reporting, to the registrants auditors and the audit committee of the registrants board of directors (or persons performing the equivalent functions): |
(a) | All significant deficiencies and material weaknesses in the design or operation of internal control over financial reporting which are reasonably likely to adversely affect the registrants ability to record, process, summarize and report financial information; and | |||
(b) | Any fraud, whether or not material, that involves management or other employees who have a significant role in the registrants internal control over financial reporting. |
Date: April 29, 2009
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By: | /s/ Robert D. Marcus | ||
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||||
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Name: Robert D. Marcus | |||
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Title: Chief Financial Officer | |||
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Time Warner Cable Inc. |
1. | the Report fully complies, in all material respects, with the requirements of Section 13(a) or 15(d) of the Securities Exchange Act of 1934; and | ||
2. | the information contained in the Report fairly presents, in all material respects, the financial condition and results of operations of the Company. |
Date: April 29, 2009
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/s/ Glenn A. Britt
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|||
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Chief Executive Officer | |||
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Time Warner Cable Inc. | |||
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||||
Date: April 29, 2009
|
/s/ Robert D. Marcus
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|||
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Chief Financial Officer | |||
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Time Warner Cable Inc. |